Two Bangladeshis Executed in Makkah: How Just Is the Verdict by the Standards of Shariah? (Part 1)

Sajjad Akbar

MPhil Researcher, Department of Theology and Philosophy, Al-Azhar University, Cairo

(Part one of a five-part series)

Introduction

Saudi Arabia recently executed two Bangladeshi migrant workers accused of immoral conduct within the precincts of Masjid al-Haram. Although the authorities called the punishment 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 four schools of law and the Maqasid al-Shari'ah, this article asks one question: was this execution carried out in accordance with the law of Allah?

1. Two Possible Scenarios and Their Fiqh Analysis

We consider two possible scenarios, because the Saudi authorities have not fully disclosed the facts. This gap obliges us to examine both from the standpoint of fiqh.

First scenario: An adult, unmarried man and woman committed zina (fornication). Four witnesses testified, or they confessed voluntarily, and the offence was proven beyond doubt through proper Shariah procedure. Their punishment would then be as follows:

First, 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 is established decisively in the Qur'an, so the hadd of 100 lashes cannot be altered. (Hadith adds one year of banishment; the jurists differ over whether this is part of the hadd.)

Second, the attendant offence: The Qur'an and Sunnah do not specify a punishment for sinning within the boundaries of Masjid al-Haram. It is left to the judge's discretion, called ta'zir. (The governing principle, 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, which 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, based on 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 Hanbali narration permits more, on condition that the ta'zir for a sin does not reach the hadd for a sin of the same kind. Imam Abu Hanifa and Imam al-Shafi'i hold broadly the same view: ta'zir may not exceed the hadd.

There is also a precedent from the Rightly Guided Caliphs on offences at sacred times or places. Ali (RA) gave a man who drank wine in Ramadan the hadd of 80 lashes, then 20 more for violating the sanctity of Ramadan. A similar report exists about Umar (RA) (Musannaf Ibn Abi Shaybah; its chain has been questioned). Violating sanctity increased the punishment somewhat but did not change its nature. Lashes did not become a death sentence.

So in the first scenario, the maximum would have been 100 lashes as hadd (with the disputed year of banishment), plus some ta'zir at the judge's discretion for violating the sanctity of the Haram. In no case death.

Second scenario: Suppose the zina was not proven through four witnesses or proper procedure, or did not take place at all, and only preliminary immoral conduct occurred. The case then moves from hadd to ta'zir. Here the ta'zir must stay below the hadd for zina, for the jurists hold that the punishment for the preliminaries of zina, or for an unproven accusation, cannot exceed that for fully proven zina.

Notably, the Saudi authorities themselves said the punishment was ta'zir, not hadd. This indicates that the second scenario is what happened: the conditions for hadd were not met, or zina did not occur. Where weak evidence prevented even the hadd of 100 lashes, imposing death in the name of ta'zir runs entirely against the logic of the Shariah.

In fairness, the Hanafi school, and Ibn Taymiyyah and Ibn al-Qayyim among the Hanbalis, permitted death as ta'zir under siyasah shar'iyyah (Shariah-based governance). But their conditions were strict: only as a last resort, where the offender's corruption (fasad) could be stopped by no other means. Examples include spying for the enemy, repeated grave crimes, spreading anarchy and terror, or ruining society through drugs. Which of these applies to two poor workers, over a single incident, who had already served more than three years in prison? The Saudi authorities have published no such information.

Conclusion: In neither scenario, not even by the Hanbali standard Saudi Arabia follows, can we find a clear Shariah basis for this death sentence.

Next part: Did this execution violate the Maqasid al-Shari'ah?