Sajjad Akbar
MPhil Researcher, Department of Theology and Philosophy, Al-Azhar University, Cairo
Introduction
Saudi Arabia recently executed two Bangladeshi migrant workers accused of immoral conduct within the precincts of Masjid al-Haram. Although the authorities described the punishment as ta'zir (discretionary punishment), they have not published the full verdict, the evidence, or any account of the trial. Drawing on the Qur'an and Sunnah, the precedents of the Companions, the principles of the four schools of law and the Maqasid al-Shari'ah, this article seeks to answer one question: was this execution carried out in accordance with the law of Allah?
1. Two Possible Scenarios and Their Fiqh Analysis
Here we consider two possible scenarios of the incident, because the Saudi authorities have not fully disclosed the relevant facts. The gap in information obliges us to examine both scenarios from the standpoint of fiqh.
First scenario: An adult, unmarried man and woman committed zina (fornication). The testimony of four witnesses was obtained, or they confessed voluntarily, and their offence was proven beyond doubt through proper Shariah procedure. In that case, their Shariah punishment would be as follows:
First, the punishment for the principal offence: If illicit relations between an unmarried man and woman are proven through four witnesses, Islam prescribes a fixed punishment (hadd) of 100 lashes each. This punishment is established decisively in the Qur'an, so there is no room to alter the hadd of 100 lashes. (Hadith adds one year of banishment alongside the 100 lashes; however, the jurists differ over whether this forms part of the hadd.)
Second, the punishment for the attendant offence: The Qur'an and Sunnah do not specify a punishment for committing a sin within the boundaries of Masjid al-Haram. Instead, it is left to the judge's discretion, which in legal terminology is called ta'zir. (The governing principle of Islamic law here, which the Saudi judicial system itself follows, is that where an offence carries a fixed hadd, any ta'zir attached to it may never equal or exceed that hadd.)
Saudi courts mainly follow the Hanbali school, and the Hanbali school sets narrower limits on ta'zir than the other schools. The well-known position of Imam Ahmad ibn Hanbal is that ta'zir may not exceed ten lashes. His evidence is the hadith of the Messenger of Allah ﷺ: no one is to be given more than ten lashes except in one of the hudud of Allah (Bukhari and Muslim). Another narration within the Hanbali school permits more than this, but with an added condition: the ta'zir for a sin may not reach the hadd prescribed for a sin of the same kind. The positions of Imam Abu Hanifa and Imam al-Shafi'i are broadly the same: ta'zir may not exceed the hadd.
There is also a precedent from the era of the Rightly Guided Caliphs concerning offences committed at sacred times or places. Ali (RA) gave a man who drank wine during Ramadan the hadd of 80 lashes for drinking, and then an additional 20 lashes for violating the sanctity of Ramadan. A similar report exists about Umar (RA) (Musannaf Ibn Abi Shaybah; hadith scholars have raised objections to its chain). In other words, violating sanctity increased the amount of the punishment somewhat, but did not change its nature. A punishment of lashes did not turn into a death sentence.
Therefore, in the first scenario, their maximum punishment would have been 100 lashes as hadd (with the disputed one year of banishment), plus some additional ta'zir at the judge's discretion for violating the sanctity of the Haram. In no case would it have been death.
Second scenario: Suppose the zina was not proven through four witnesses or proper Shariah procedure. Or that zina did not take place at all, and only some preliminary immoral conduct occurred. The case therefore moved from the level of hadd to the level of ta'zir. Here the governing principle is that the ta'zir must remain below the hadd for zina. For the jurists have a clear principle: the punishment for the preliminaries of zina, or for an unproven accusation, cannot exceed the punishment for fully proven zina.
It is notable that the Saudi authorities themselves stated the punishment was imposed as ta'zir, not as hadd. This indicates that the second scenario is what actually happened: the evidentiary conditions for hadd were not met, or zina did not take place at all. So where weakness of evidence prevented even the hadd of 100 lashes from being applied, imposing death in the name of ta'zir runs entirely against the logic of the Shariah.
In fairness, it must be noted that the Hanafi school, and Ibn Taymiyyah and Ibn al-Qayyim within Hanbali fiqh, permitted death as ta'zir under siyasah shar'iyyah (Shariah-based governance). But their conditions were strict. Death was permitted only as a last resort, where the offender's corruption (fasad) was so great that it could not be stopped by any means other than killing him. Examples include spying for the enemy, repeated involvement in grave crimes, spreading discord, anarchy and terror in society, or pushing society to the brink
