Mediation Between Shariah And Ihr: Hacking Of Death Sentence Through ‘IJTIHAD’ Following Ihr Moratorium Standards Except For Brutal Crime Episodes.

Abstract

The death sentence in Islamic states has perpetually been the contradictory point for western world and international human rights watching over us for the purpose of critique on divine law. Prescribed circumstances made a multiplex relationship among state law, Shariah law, and principles of member international human rights organizations. Whether customary laws also could not be ignored while solving the puzzle. This study examines ‘Ijtihad’ as the key source for jurists for synchronizing Islamic law in its divine sense with human rights around the globe without under suspicion of western culture. ‘Ijtihad’ with the blend of ‘Maqasid al-Shariah’ under Islamic evidentiary safeguards for ‘Hifz al-Nafs’ can suspend the sword while punishing in almost thirty crimes of PPC, 1860 resulting death punishment excluding brutal nature of criminality. In local context culture, only two entities: i). ‘Majma’ Fiqh’ with collaboration of Shariah courts and ii). ‘Jirga mediation’ supervised by ‘Majma’ Fiqh’ can come to light of ‘Ijtihad’ with ‘Maqasid al-Shariah’ entrenching theme of Mercy and Forgiveness (afw) instead of retribution.

Contrarily, Some Shariah law death punishments must not be avoided or abandoned for brutal crimes to safeguard humanity as a whole if Islamic evidentiary standards are satisfied. Those penalties can be aligned to international human rights standards by enclosing article 6(2) of ICCPR (international covenant on civil and political rights) which advocates death punishments for mass killing and terrible lawbreaking against children. ICCPR respecting towards legal pluralism and cultural sovereignty plays a secrete role in congruency of Islamic law punishments for merciless crimes. General Comment No: 36(2018) of the UN human rights committee also harmonize Islamic law capital punishment by permitting the human rights for death sentence against intentional killing. The above hybrid Islamic legal framework has embryonic features of modern Islamic justice in parallel to international human rights. By applying doctrinal legal approach with the combination of limited qualitative method, this study is derived from Quran and Sunnah as primary with interpretations of classical Shariah sources while review of key related article and reports published within last five years in addition of comparative case studies of other Muslim states as secondary source. Study of four Muslim states highlights structure of ‘Ijtihad’ based Shariah compliant justice formulating mode and limit of executions in the light of Quran and Sunnah. Approach of de facto moratoria enables the Muslim states to bear International human rights pressure. The study also examines legal pluralism and cultural respect of ICCPR to weak judicial systems or who find reasons to responsive to divine law but with the harmony of global modern human rights.

The study concludes the sensible approach using strategic ‘ijtihad’ except in brutal crimes following Shariah principles, customary laws by ‘Jirga mediation’ and human rights standards is only solution to reduce executions in shaping long term imprisonments or forgiveness (afw) in presence of weak evidentiary safeguards. Nevertheless, death sentences are necessary to carried out for the dreadful crimes for stable and peaceful society. So, harmonization is credible by restricting capital punishment except mass killing, heinous crimes against children, and somewhere intentional killings of vulnerable groups. This study illuminates basics of policies for law-makers and jurists to frame International human rights standards within Shariah’s divine path of Justice.