Sajjad Akbar

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

(Part three of a five-part series. The previous part examined the verdict in light of the Maqasid al-Shari'ah.)

3. Offences Within Makkah: Precedents in the Islamic Tradition

a) The principle of Ibn Abbas (RA): He said that whoever commits an offence inside the Haram is given the punishment for the offence he committed (al-Azraqi, Akhbar Makkah; al-Tahawi, Sharh Mushkil al-Athar; authentic chain). That is, an offence in the Haram carries its prescribed punishment, not a different or increased one.

b) The theft at the Conquest of Makkah: When a woman of the Makhzum tribe stole within the boundaries of Makkah, the Messenger of Allah ﷺ applied the prescribed hadd for theft, and did not even accept the intercession of Usamah (RA) (Bukhari and Muslim). Although the offence occurred within the Haram, the prescribed hadd (cutting of the hand) was applied; the punishment was not increased out of respect for the Haram.

c) The precedent of Ali (RA): Just as the Haram and Makkah have sanctity as a place, Ramadan has special sanctity as a time. When the poet al-Najashi was brought to Ali (RA) for drinking wine in Ramadan, he first gave him the prescribed hadd of 80 lashes, and the next day 20 more. When al-Najashi asked why, Ali (RA) said: these twenty are for your audacity against Allah and for violating the sanctity of Ramadan. A similar report exists about Umar (RA) (Musannaf Ibn Abi Shaybah, hadith 30600–30601; there is a break in the chain, though it is narrated through multiple routes).

Three points emerge. First, the Companions regarded violating a sacred time or place as increasing the gravity of an offence. Second, that increase took the form of keeping the original hadd intact and adding a separate ta'zir. Third, the addition was one quarter of the original punishment. The punishment increased somewhat in degree, but its nature did not change; lashes never became a death sentence. By this measure, the most that could apply even to fornication by unmarried persons inside the Haram is 100 lashes as hadd plus some proportionate ta'zir, never death.

d) The statement of Saudi Arabia's own former Grand Mufti: Shaykh Abd al-Aziz ibn Baz said that whoever violates the sanctity of the Haram by committing zina within it is to have its hadd applied to him, citing the Prophet ﷺ cutting the hand of the woman who stole in Makkah. Notably, even the former head of Saudi Arabia's highest religious authority named the hadd for zina as its punishment in the Haram, and spoke of no new or increased penalty.

e) The meaning of the Qur'anic warning: Allah says: "And whoever intends therein (in Masjid al-Haram) a deviation in wrongdoing, We will make him taste a painful punishment." (al-Hajj, 22:25) The exegetes explain that sin in the Haram is graver; even one who merely intends a sin there is held accountable for that intention. But this accountability is primarily before Allah, in the Hereafter. The verse does not mean that a worldly court should replace the hadd with death.

4. Shariah Procedure in the Trial: How Much Was Upheld, How Much Violated?

In this case the Saudi authorities have published neither the full verdict, the judicial reasoning, the evidence, nor any account of the trial. So we do not know whether the accused had a lawyer or interpreter, or could present their case on appeal. Perhaps all of this was properly upheld, and we do not claim otherwise. Our question lies elsewhere: is keeping these matters secret not itself in conflict with Islamic principles of justice? Death cannot be undone once carried out, so the burden of showing the justification for the sentence and the transparency of the evidence lies with the state that imposed it. The Prophet ﷺ said: it is better for the ruler to err in pardoning than to err in punishing. The message is clear: the intent of the Shariah is to save life, while curbing crime through ta'zir.

Next part: The rights of the condemned and his family, and the transparency of justice