The Legal Consequences of Apostasy in Islam

 

The Legal Consequences of Apostasy in Islam

 

 

 

Author: Hossein Raeesi,

Law and Legal Studies Department, Carleton University

 

Abstract:

Islamic traditional school of thoughts (Theological School) followed by their own interpretations of some Quranic terms, have decreed apostasy as banned and punishable.

Notwithstanding it has civil and criminal consequences in Muslim countries in official and unofficial domains. In Quranic context and early Islamic law however, there is no such relevance in legal or precedence. However the concepts of apostasy and apostate have been converted to an incisive keyword and weapon for the political Islamic extremist to kill and annihilate their own opponents during the political history of Islam. Although after 1979 revolution in Iran, this discourse has not been legalized officially, there have been many judicial instances that judges questions the respondent as: “Are you Muslim or from Muslim family or not”?, and based on the answer they hear, then have sentenced thousands of youth to death[1]. Apostasy is a term that directly diminishes human dignity and human rights. Islamic extremism in all Islamic school of thoughts more or less supports it. In this research I have shown how different commentaries have denied freedom of speech in all levels.

Keywords: Apostasy, apostate, human rights, Quranic law, sharia law and legal consequences.

 

Introduction:

Apostasy (ridda, irtidad,takfir) in Islamic literature, is called irtidad an apostate is called murtadd.[2] It is related to people’s belief or disbelief in religion. Based on the dependability of Islamic countries or Islamic groups on Sharia law and its traditional roots, they deem apostasy criminal or decriminalized. Most of them consider it criminal, however, some of them do not because there is no explicitness in Quran[3] that an apostate has to be punished in this world. Such an issue of disagreement indicates the boundary between extremism and modernity.

In such Islamic countries as Saudi Arabia, the criminalization of apostasy is a result of the wholesale adoption of Sharia law.  In most of the countries that regard apostasy as a capital offense, the crime is made part of the countries’ penal code either directly or by reference. For instance, the offense is part of Mauritania’s 1983 Criminal Code[4], the United Arab Emirates’ Penal Code of 1987[5], Sudan’s Penal Code of 1991, Yemen’s Penal Code of 1994[6], Qatar’s 2004 Penal Law[7], and Brunei’s 2013 and 2014 new Criminal Code[8] (however, in Brunei the provision on apostasy is not yet in force).  Afghanistan, Iran and Qatar have incorporated the crime of apostasy into their criminal laws by reference to what are known as  Hodoud offenses.

The debate regarding the criminalization of apostasy appears to be ongoing in Islamic countries.  In Pakistan, a draft bill making apostasy by men a capital offense was proposed in 2007, but was not adopted.  Similarly, in Iran a draft Penal Code containing a provision on apostasy was initially adopted by the country’s Parliament in 2008, but was ultimately rejected. In practice, Iran’s penal code, civil code and press law consider apostasy a capital offence both directly and indirectly. Thus, it brings about legal consequences.

In some Islamic countries there is less clarity as to the status of apostasy as a crime.  In Morocco, the Penal Code does not criminalize apostasy; however, the country’s Supreme Council of Religious Scholars, the sole entity with constitutional authority to issue religious decrees, (in April 2013) decreed that apostasy is a capital offense. The legal status of this decree remains unclear.  Although there is no statutory law criminalizing apostasy in Pakistan, some scholars believe that this gap could be filled by Sharia law, which makes apostasy a capital offense.

In other Islamic countries, where formal laws do not criminalize apostasy, religious laws are used to prosecute persons for apostasy. Although Iran’s current Penal Code does not criminalize it, courts have prosecuted individuals for apostasy based on their understanding of Sharia and legal opinions issued by religious leaders.  In Jordan, where the Penal Code does not include specific provisions on apostasy, it is prosecuted in religious courts, including at the request of any member of the community.[9]

In addition to the criminalization of apostasy in Muslim states, it has other legal consequences such as being deprived from inheritance and accused of other crimes such as blasphemy. Also If either one of a Muslim married couple becomes an apostate, the apostasy causes a single and immediately irrevocable divorce[10]. Such cases can be found in the judicial system of Islamic countries and in wayward Muslim fundamentalists’ measures.

Since it is not practically feasible to investigate all Islamic countries and the criminalization of apostasy and its legal consequences are mainly political behavior blended with religious beliefs.

The post Iranian 1979 revolution and apostasy

There has never been the freedom of religion in Iran, either before or after the 1979 revolution. Apostasy didn’t use to be considered decriminalized behavior in the criminal code of Iran before the revolution although it had legal consequences due to the effects of Sharia law on the civil code.[11] With the advancement of the 1979 revolution in Iran and the new constitution backed by Ayatollah Khomeini receiving the people’s vote of confidence on April 2nd, 1979, the fundamental reasons for the uprising, political liberty, freedom of the press, political parties, equality slowly began to fade away and became forgotten[12]. The new leaders started to put more importance on the necessity of synchrony of laws and regulations with Sharia than anything else. Achieving such a purpose  needed other ways of thinking to  extinguish any opposition and liberal perspective. Thus, “apostasy”, “apostate” and “pagan(Kafar)” became keywords in the legal discourse of the day. The constitution further provided the necessary legal basis for the ruling clergy to use courts to suppress dissidents.

One of the key articles of the Constitution, permitting the declaration of one faith superior over all others and suppression of religious minorities is the Article 4 which states: “All civil, penal, financial, economic, administrative, cultural, military, political, and other laws and regulations must be based on Islamic criteria. This principle applies absolutely and generally to all articles of the Constitution as well as  all other laws and regulations, and the Guardian Council presides over this matter.”

The array of problems that the legal society in Iran has faced after the 1979 revolution could be mostly linked to the materialization of Article 4 of the Constitution. This started with the identification of Sharia laws and translating them from Arabic to Farsi and seeking the confirmation of Ayatollah Khomeini when he lived and by using his documented theological opinions after he died. The Constitution and the set of laws put into place based on Islamic provisions have proven to be cruel if anything. This cruelty gradually gained momentum, first with the blanket executions of the supporters of monarchy and then with the executions of some of the revolutionaries and young Iranians against the rule of the clergies that were seen as blasphemous pagans in the eye of the regime. The further establishment of the rules based on Sharia law started to affect not only people that didn’t believe in Islam, but also slowly began to aim at those believers who didn’t think all Sharia teachings could be implemented in Iran. The first group to be officially charged with paganism and pronounced apostates by Ayatollah Khomeini was the people who stood against the Punishments and Retribution Bill brought up after the formation of the first Parliament after the revolution. On June 15th, 1981 they called on the public to rise and protest against passing of this law[13].

Khomeini reacted to the announcement by the National Front of Iran inviting the people to hold demonstrations to protest this bill with declaring them apostates and clearly calling for their execution[14].

Stressing on dealing with apostasy with force was further strengthened with assignment of “Sharia Rulers” on judicial benches to control the public legal. This was the start to a process for the legal system in Iran to cease a great deal of private properties and shed the blood of numerous people with apostasy as an excuse.

As the pertinence of a legal system founded with reliance on a religion is to be intolerant of other religions, the issue of Apostasy has always been of great importance for religious rulers.

Later on we will look at how four decades after the revolution,Revolutionary Courts still stand side by side with Ministry of Intelligence officers and the IRGC in using apostasy as an excuse for their political agenda, executing and ceasing of private property for punishing and suppression.

The relevance and necessity of this discourse

            Freedom of expression is in no way protected by the legislator and the government executives in Iran. In my opinion, apostasy is a dangerous legal process that overshadows and destroys freedom of speech and religion. It stands against basic human dignity and is one of the most controversial aspects of Islamic principles and Iran’s criminal law.  For the  protection of political and legitimate freedoms, it is essential to outline and highlight this situation and push it into limelight. From a different point of view, this is again necessary because this issue has proven problematic even for the Islamic legislators and Muslim Clergy and some enlightenment could prove useful for the correction of the wrong and deadly process. Especially with the rebirth of new Islamic governments around the world, there is the potential for following Sharia law in this way to become a trend and seriously threaten the notable religious minorities (such as Christians, Jewish, etc.) in those countries[15].  It is also noteworthy that the number of Iranian youth that turn to atheism, new beliefs[16], Sufis or Christianity is on the rise in Iran and I have personally dealt with several cases in which such groups, big and small, were formed even in rural areas and smaller more conservative cities.

Thus, criminalizing, or rather decriminalizing apostasy could be the matter of life or death for many, currently or in the future. The public conscious should be awakened to stop Islamic extremists to religiously massacre with impunity.

There is a great deal of difference in opinion between Muslim intellectuals and fundamentalist in this matter. The debate on whether or not apostasy is a crime has a high place in legal discussions, decrees issued by high-level clergy and even constitutional law discourse. However there is a lack of clarity in this matter in the constitution and other criminal laws.

Arbitrary and limited mentions of apostasy or building the case on basis of Islamic provisions and Sharia laws has led to formation of criminal cases for many and has resulted in death and destruction of many lives, even in many cases unofficial illegal acts.[17] For instance professor Nasr Hamed Abu Zyed, a modern Muslim tniker, has sued by an Egyptian citizen since his delivered his famous idea which is: “Although the Quran’s “divine sources” should not be questioned, one should take into consideration “the historical and cultural context” of the language – and therefore its content – which would allow for the easier adaptation of Islamic ideas to contemporary times and contexts.” Thus he was declared to be an “apostate”.[18]

It is noteworthy that, between the Sunni clergy, there is unity in considering apostasy punishable by death. This opinion is shared by a majority of clergy of Shiite faith. The controversy lies in the type of punishment in whether it considers a Tazirat or a Hudud punishment for apostasy.

Here, I will analyze the matter, define apostate and apostasy and its place in Islamic provisions and Iranian law. My approach is heavily based on judicial cases, personal experience during my 20 years of practicing law in Iran and the status quo in what the judicial system inflicts on Iranians. I will argue for the necessity of removing this dangerous process that affects life, fortune and future of people, essentially because they have expressed a certain opinion or have put themselves in great danger for dismissing the beliefs of their parents. Here I will also discuss the latest developments of legislation in the new Islamic Criminal Code of Iran regarding this issue.

            Quran, Hadith and the definition of apostasy

A subject of apostasy; in origin it means to return and forsake, refers to one who has renounced the righteous faith. In Sharia, a person that, after accepting Islam as his/her religion, renounces it. The expression refers to a person who exits Islam. Therefore this insinuates infidelity. It has been mentioned in Quran a few times; such as:“O you who have believed, whoever of you should revert from his religion – Allah will bring forth [in place of them] a people He will love and who will love Him [who are] humble toward the believers, powerful against the disbelievers; they strive in the cause of Allah and do not fear the blame of a critic[19].” Also holy  Quran is not mentioning any punishment in this world  and says: “And whoever of you reverts from his religion [to disbelief] and dies while he is a disbeliever – for those, their deeds have become worthless in this world and the Hereafter, and those are the companions of the Fire, they will abide therein eternally[20].” Therefore we can see that according to the holy book whoever forsakes his faith is an apostate. However there is no punishment spelled out and it is merely mentioned that there are implications for their afterlife.

Although I argue  that there is no support in for the apostasy in Quran, it does not specify a punishment or legal consequences, different Islamic streams have moved to unanimously define apostasy based on “Prophet Muhammad’s tradition”[21].

The significance of this definition is the danger that it creates and the importance it give to apostasy is based on the fact that apostate and infidel is specified as deserved to death and“Najis” in the Islamic legal terminology. This essentially means that the person is “unclean” and should not be touched or dealt with by Muslims. Therefore such person has no inherent value of life, hence sentencing him/her to death does not need complicated legal basis. It is decreed upon all Muslims to act on extermination of the apostate/infidel.

Some Sunni clergy consider even followers of Shiite faith apostates, deserved to death, infidels and Najis; done in the same manner that the Shiite consider all Baha’is apostates for exiting the Shiite faith. Baha’is fundamentally consider their faith as separate from the Shiite faith; therefore in the Islamic definition they are considered apostates.

Research shows that apostasy is a crime under Islam and all Islamic streams have specified this and spelled out punishments for it. The only difference is the types of apostasy and whether the type of punishment is considered Tazirat or Hodud. In all Islamic school of thought and provisions, apostasy is considered as a heinous sin and many of the Muslim scholars don’t even accept repentance in case of apostates. However, Quran, as the most important source for Islam, emphasises freedom of belief and does not appear to support the death penalty, any contrary sayings attributed to the Prophet should be read with a high degree of caution[22].

Faqihs consider the punishment for apostasy to be different between men and women. A male apostate is sentenced to death, whereas a female apostate would be punished by permanent imprisonment. Also, there are minor differences between Shiite clergy in the punishment for a man that has been born from Muslim parents (Murtad Fitri) and one who hasn’t (Murtad Mili). The punishment for the man born to Muslim parents is death. For instance in case of Salman Rushdi, when it was said that he had repented his actions and asked for forgiveness, Ayatollah Khomeini declared that in any case he should be punished with death for writing The Satanic Verses because he was born to Muslim parents. Each and everyone of Islamic scholars that have enough seniority that the public can imitate them by reading their book, in following Islam, sets apart a chapter for apostasy, the ways of its confirmation and the punishment for it.

 

Human dignity, and apostasy

Since Islam defines itself as the only righteous religion, rejecting the religion, Allah, Prophet Mohammad or the afterlife would be undoubtedly considered apostasy, which makes the person an infidel. All faqihs, including Ayatollah Khomeini in his clerical book Tahrir al-wasilah[23] and many muslims scholars on their books have included a section dedicated to the concept of tharat , Najasat[24] and one of them are infidels as well as Mushrikin; Thus making the infidel ‘untouchable. Any Muslim individual is then obligated to cleanse them-self before prayers if there has been any contact with an infidel or apostate. Thus becoming an infidel results from renouncing the concepts primary to Islam.

I have to add that although an infidel and an apostate are overlapping in certain ways, there is a difference between infidels that has never been a Muslim or one that has become an apostate. Extermination of the Apostate Infidel is obligatory, whereas killing an infidel that has never been a Muslim would be an obligation if that person ‘starts a war’ with Muslims, conspires against them or has sexual relations with a Muslim woman.

There are some arguments in this such as  rejecting one of the obligatory provisions of Islam: a. believing in the compulsion and necessity of prayers and fasting in Ramadan is one of these basic teachings, however the provisions are not limited to these two. Some Islamic scholars consider all of Islam’s legal and religious rules to be requirements and rejecting any of them would be considered apostasy. For instance Ayatollah Khomeini argued that rejecting the basis of Providence of the Jurist proves apostasy. Whereas other groups believe that rejecting Islam’s rules proves apostasy only if it leads to rejection of Allah and Prophet Mohammad[25].

  1. Rejecting Islam’s clear but inessential provisions: this group of rules is not axiomatic like prayers and fasting but include Hijab (covering up) and Taghlid (following a faqih in religious rituals). For example, rejecting this simple imperative resulted in Hashem Aghajari, a university professor receiving a death sentence after a speech he made at Hamedan University.[26] The verdict was highly controversial and there were a wide range of different reactions to it.

In Shiite religious jurisprudence, there are civil and criminal provisions for all types of apostates ranging from a person born to Muslim parents (Murtad Fitri) and one who hasn’t (Murtad Mili). A man that is a Murtad Fitri is sentenced to die if he becomes an apostate and the judge would not accept his repentance. A man that is a Murtad Mili would be asked to repent his apostasy, or face death. A woman who becomes an apostate, regardless of her parents, is invited to declare her repentance. If she repents she would be freed, and if not she is sentenced to lifetime incarceration[27].

Ultimately in all fourth Sunni jurisprudences as well as in Shiite the apostate is invited to pronounce repentance otherwise the punishment is death. There is no difference in this case between Fetri or melli.

Thus I can say that apostasy is not considered merely a criminal activity relative. The Islamic juprodeses have converted apostasy to an official and unofficial legal incident diminishing human dignity. I believe this legal incident is dangerous because in other such incidents such as birth or death, a person either gains certain rights or lose some, in case of death in an inevitable transfer of those rights to heirs. However in my opinion this particular legal incident is entirely against corporeal integrity and inherent human dignity and any and all things that a human being is entitled to.

Furthermore, when someone commits a crime or rather has been charged with committing a certain crime, this claim puts forward a process. But with apostasy, the ‘apostate’ is often not given the right to due process and without access to legal defense or being sentenced by a court, gets exposed to a decree of infidelity. Claiming someone is an apostate is an excuse for terror and the terrorist, whether sentenced to apostasy in a court or outside legal boundary; the person’s human dignity is primarily targeted. In a religious society, even the claim that someone is an apostate can lead to social exclusion and the alleged apostate becomes a social pariah.

One of the worst consequences of ‘apostasy’ in Islamic Law is deprivation of Civil Rights from the subject. As mentioned before, the apostate is automatically an infidel and all Islamic Clergy believe that the infidel is Najis and is immediately deprived of all social rights and liberties. This even extends to marital relationships; under Sharia law, the apostate cannot continue having a relationship with a spouse because apostasy annuls their marriage.

These examples are why I am emphasizing ‘human dignity’, it is not always death that comes from being charged with apostasy, it can seriously damage what livelihood you might have. Another example of this is that the apostate, based on Sharia law loses the right to inherit and terminates his/her marriage[28].

Freedom, especially freedom of speech is undoubtedly one of the most important and fundamental of the civil and political rights of the citizen. The right to freedom has been acknowledged in article 18 of this Covenant to which Iran is obligated to adhere, states:

“1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

  1. No one shall be subject to coercion, which would impair his freedom to have or to adopt a religion or belief of his choice.”

Thus, apostasy conflicts with a variety of foundation texts of Islam and with the current ethos of human rights, in particular the freedom to choose one’s religion[29].

            Conclusion

 

The apostasy has a political nature that can be manipulated by Islamic government and Islamic groups.The criminalization of apostasy and its legal consequences necessitate the existence of  a governmental structure to implement the classical form of Islamic laws. Therefore, the more political the Islamic structure is also the less committed countries are to human rights treaties, the more feasible it is to implement punishments for apostasy.

In my opinion the latest developments of this issue and the newest approaches taken in dealing with apostasy is the most dangerous yet. It has elevated trials concerning apostasy to political trials and instead of capital punishment, which would increase the political cost of the case and bring well-deserved criticism and pressure from international civil society, it has resulted in creation of cases with charges concerning national security and politics for every person that gravitates towards other religions that end up with substantial punishments of imprisonment and deprivation of social rights.

This sort of politically charged method of making a violent stance against individuals’ beliefs is prevalent in case of Christian converts, Baha’is, Sufis and other religious minorities. Hence we can see that the latest developments in legislation in Iran is in complete defiance of Human Rights principles and moves to persecute all religious minorities and their leaders.

The different interpretations of Quran and Hadith, allowing muslims extremists to rely on Islamic sources when the case is not clear in codified an Islamic law and religious fatwas opens way to charges of apostasy and punishments such as stoning, when the Quranic law is unclear and the case is unprecedented. This paves the path for persecution of anyone that holds any belief other than Islam and grossly violates the principle of freedom of expression that is one of most important and accepted parts of international Human Rights declarations.

 


[1] Amnesty International report, December 2018.

[2] Heffening, W. (2012), “Murtadd.” Encyclopaedia of Islam, Second Edition. Edited by: P. Bearman, Th. Bianquis, C.E. Bosworth, E. van Donzel, W.P. Heinrichs; Brill

[3] Quran chapter 3 verse 90. (إِنَّ الَّذِينَ كَفَرُواْ بَعْدَ إِيمَانِهِمْ ثُمَّ ازْدَادُواْ كُفْرًا لَّن تُقْبَلَ تَوْبَتُهُمْ) Verily, those who disbelieved after their belief and then went on increasing in their disbelief never will their repentance be accepted.

[4] Article 306 of the Criminal Code.

[5] Article 1 and 66, UAE incorporated hudud crimes of Sharia into its Penal Code – apostasy being one of them.

[6] Article 12. Yemen apply Hudud crimes under sharia law such as apostasy.

[7] Article 1 of law 11 of 2004, Qatar’s Law 11  incorporates Sharia law into various offences, including apostasy.

[8]  In April, 2014, Brunei introduced a new penal code which implemented elements of Sharia law and instituted the death penalty (by stoning) for adultery, sodomy, rape, apostasy, blasphemy, and insulting Islam.

[9] .Laws Criminalizing Apostasy in Selected Jurisdictions;  The  Law Library of Congress Legal Research Center, Washington Dc, May 2014.

[10] Maliki school: The Kuwait Fiqh Encyclopedia, vol. 22, p. 198.

[11] Article 881 bis – An unbeliever (Kafir) does not take inheritance from a Muslims and if there are unbelievers among the heirs of a deceased unbeliever, the unbelieving heirs do not take inheritance even if they are prior to the Muslim as concerns class and degree.

[12] United Nations Commissions of Inquiry and the Case for Iran, Human Rights Clinic Yale Law School, January 2015, p7.

[13]  See; Abrahamian, Ervand, History of Modern Iran, Cambridge U.P., 2008.

[14] Sahife Nur, Khomeini, P.19, 20

[15] See;Mottahedeh, Roy, The Mantle of the Prophet: Religion and Politics in Iran, One World, Oxford, 1985, 2000.

[16] Mohammad Ali Taheri, the pioneer of Erfan Halgheh.

[17] The recent murders in secular Bangladesh echo this country’s founding tragedy, when Islamist militias killed 116 intellectuals in the final days of the 1971 war for independence.

[18] https://www.alaraby.co.uk/english/blog/2015/7/7/remembering-the-radical-thought-of-nasr-hamid-abu-zayd.

[19] Al-Ma’idah 5/54

[20] Al-Baqarah 2/217

[21] Sahih Al-Bukhari (9:57).Whoever changes his religion, kill him.

[22] Abdullah Saeed, Hadith and apostasy, Public Discourse; The journal of the witherspoon institute, April 4, 2011.

[23] Chapter on najasat( the unclean objects) Problem tenth.

[24] Quran 9/28 Ritually unclean

[25] See; Religious freedom in Islam: The witness of the Qur’an and the Prophet, Abdullah Saeed, ABC Religion & Ethics, Oct 2018. https://www.abc.net.au/religion/religious-freedom-in-islam/10419798

[26] The New York Times Nov 17, 2002; Aghajari had called for separation of state and religion and said that people should not follow clerics blindly.

[27] Khumaini, Tahrir Al Wasilah, Vol2,p 366.

[28] WikiIslam; Qur’an, Hadith and Scholars:Apostasy.

[29]   See, Hassan Saeed and Abdullah Saeed, Freedom of Religion, Apostasy and Islam, Taylor & Francis Ltd,2004.

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