AboutImam Habeeb Expertise Being an Educator of Islamic Studies and Interfaith discussions for the past 20 years and having authored nine books and numerous articles on Islam - I think I can answer questions on Islam and other religions and issues of the Hanafi jurisprudence as well as general questions on Quran and Sharia. Love counselling, sex and marital problems are some such topics!
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Question I am currently invetsigating the matter of Qisas executions under the
modern state. As we know that during the earlier days of Islam,
executions were immediate, but today after appeals and re-appeals
and various judicial requirements, as well as due to delays in the court
systems, many people sentenced to death under qisas end up staying
in jail for as much as 17 yrs even.
The question is that they were not sentenced for that term in prison,
rather it is an add on punishment. Moreover, the deplorable prison
conditions especially in death rows can constitute cruel and torturous
treatment easily especially if the convicted person was not sentenced
for that term.
The international jurisprudence on the matter has been that if a state
is unable to carry out the execution of a convict even after 5 yrs then
the state can no longer carry out this conviction and the sentence is
converted to life imprisonment instead.
My question is that when one brings into this equation the private right
of Qisas of the victim's family, how would this issue be resolved? At
what point if any is the private right to Qisas waivable in favor of the
fundamental right of the convict against cruel and inhuman treatment
due to bearing jail time he wasn't sentenced for.
Moreover, If a convict is in prison for 15-20 yrs and then executed,
wouldn't it amount to being punished twice for the same crime without
even being sentenced?
So far I'm at a dead end, any guidance in the matter would be greatly
appreciated.
Answer While the capital punishment is cogent as per what convictions for what offences are concerned. However, since the actual proving and sentencing is ijtihadi and based upon judgement one can institute a number of regulations in the spirit of justice, human rights and mercy in order to establish this tenet.
Hence a roundtable on the matter as per that state with its lawyers, scholars etc will be valid and their considerations will be considered Sharia approved.
The Prophet did say to avoid qisas as much as possible so the rule is not to jump to execution but to get the family to forgive as well as to give favour of doubt to the accused.
You have a point it will be punishment twice and the family should be educated to see it that way.
