Two Bangladeshis Sentenced to Death in Makkah: Can a Death Sentence Be Given as 'Tazir'?

Two Bangladeshi citizens arrested in Makkah, Saudi Arabia, over allegations of involvement in 'immoral activities' at a mosque have recently been found guilty by a court and sentenced to death as 'tazir' under Sharia law. According to a statement by the Saudi Interior Ministry, the two Bangladeshis were arrested in connection with the incident at the mosque in Makkah.

After that verdict, a question has been raised: can a death sentence be given as 'tazir'? Tazir means a punishment whose type and amount are not fixed in the Quran and Sunnah; a judge or ruler decides it after considering the circumstances.

In classical fiqh, a death sentence as tazir is not the general rule. However, jurists of some schools have accepted a limited exception under the ruler's 'siyasah', or state policy.

Punishment in Islamic criminal law is usually discussed in three categories. The first is hudud, punishments fixed in the Quran and Hadith; the second is qisas and diyat, meaning like-for-like retaliation or blood money in cases of murder and injury; and the third is tazir.

The root of the word 'tazir' is 'azar', whose sense is to prevent and to discipline. In technical terms, it is a punishment applied, for correction and prevention, to offences outside the scope of hudud and qisas. Abdul Qadir Awda discussed this definition in his book 'At-Tashriul Jinayi al-Islami Muqarin bil Qanunil Wadi' (Muassasatur Risalah, Beirut).

The type of tazir depends on the judge's discretion. Rebuke, fines, confiscation of property, imprisonment, exile and flogging are among the forms of tazir discussed in classical fiqh. In the modern Saudi system, offences such as embezzlement, bribery and cybercrime are also tried under tazir.

The principle in Hanafi fiqh is that a tazir punishment will not exceed the level of the related hudud punishment. There is disagreement among the imams over the maximum number of lashes. Al-Marghinani discussed this in his book 'Al-Hidaya Sharh Bidayat al-Mubtadi' (2/505, Maktabatul Bushra, Karachi, 2006).

Because of this flexibility in tazir, a judge can take a humane or a strict decision after considering the nature of the offence and the condition of the offender. Again, if there is no written and specific law, the same offence could produce a different result in the hands of a different judge.

The Quran, in verse 32 of Surah Maidah, says that killing someone, unless it is for murder or for creating 'fasad', or disorder, on earth, is equivalent to killing all mankind. A hadith mentions three reasons for which a Muslim's blood becomes lawful: a life for a life, a married adulterer, and a person who leaves the religion and separates from the community (Sahih Bukhari, Hadith: 6878).

Many jurists read this hadith and verse as a boundary line for the death penalty. Under this reading, a death sentence is not generally desirable in a discretionary punishment such as tazir.

The fiqh tradition, however, did not stop there. In Hanafi fiqh, a concept called 'qatl siyasatan', or a death sentence for reasons of state policy, has been discussed. Under it, a ruler can give such a sentence as an exception in cases of repeatedly committed and widely harmful offences, if the harm cannot be prevented in any other way. Ibn Abidin discussed this concept in his book 'Raddul Muhtar ala ad-Durrul Mukhtar' (Darul Fikr, Beirut, 1992).

In the Maliki and Hanbali traditions, discussion is found of comparatively broader exceptions in cases such as espionage, spreading distortion in religion, and repeatedly committing terrible offences. The Shafi'i tradition is generally more restrained. This disagreement is discussed in the tazir entry of 'Al-Mawsuatul Fiqhiyyah al-Kuwaitiyyah' of Kuwait's Ministry of Religion and Waqf.

Imam Ibn Taymiyyah's book 'As-Siyasah ash-Shariyyah' is also an influential source for this discretionary authority of the ruler. Ibn Taymiyyah mentioned that, for those who spread drugs or intoxicants widely in society and from whose harm society cannot be protected in any other way, the state can, if it wishes, give them a death sentence (As-Siyasah ash-Shariyyah, page 135, Darul Kutubil Ilmiyyah, Beirut, 1998).

In these views, a death sentence is not a regular punishment; it is considered a 'last resort', when harm cannot be prevented by a less strict punishment and the harm is society-wide. The principle of 'shubha', or benefit of the doubt, in fiqh also plays a central role in criminal trials. Intisar A. Rabb discussed this principle in the book 'Doubt in Islamic Law' (Cambridge University Press, Cambridge, 2015).

For this reason, the widely circulated description that 'the majority of jurists said a death sentence in tazir is invalid, and the state can make an exception if it wishes' is only partly true. The correct picture is that there is disagreement by school, and jurists differ over the scope and conditions of the exception.

Tazir is a valid and necessary category in Islamic law; it gives judges flexibility for the purposes of correction and prevention. The main tone in classical fiqh is restraint: the sanctity of life receives the status of a principle, and the death sentence is discussed as a narrow, siyasah-based exception. So, before the question of whether a death sentence can be given in tazir, it is essential to ensure whether, in a modern state, the conditions for giving that punishment are in fact being ensured through written law, a transparent process, fair representation and consular protection.