Sajjad Akbar
MPhil Researcher, Department of Theology and Philosophy, Al-Azhar University, Cairo
(Part five and final of a five-part series. The previous part discussed the rights of the condemned and his family, and the transparency of justice.)
c) The Limits of the Ruler's Authority (Wali al-Amr)
The strongest possible argument of the Saudi authorities is that ta'zir and siyasah shar'iyyah give the ruler the authority to determine punishments. This is not in dispute. But the question remains: is this authority unlimited? In Islamic political thought, the ruler's authority has been compared to that of the guardian of an orphan. Umar (RA) said: I have placed myself, with regard to the wealth of Allah, in the position of the guardian of an orphan. The guardian may spend the orphan's wealth, but only for the orphan's benefit, not as he pleases. In the same way, the ruler's discretionary power is bound to the welfare of the people. The jurists expressed this in a fundamental maxim: the ruler's every decision over the people is valid on condition that it serves their welfare. A decision that serves no welfare falls outside the ruler's authority altogether.
Ibn al-Qayyim, one of the foremost authorities on siyasah shar'iyyah, himself provided the measure. He quotes Ibn Aqil's definition: siyasah is any measure through which people come closer to welfare and further from corruption. He also said that whatever path establishes justice and fairness is part of the religion. In other words, the criterion for the legitimacy of siyasah is justice and welfare, not the ruler's will.
By this standard the question stands: by giving two poor migrant workers, who had already served more than three years in prison, a punishment harsher than the hadd, on undisclosed evidence, without informing their families or their state, what welfare did society draw closer to? What corruption was removed? A siyasah that, instead of establishing justice, raises doubts about Islamic law itself across the world does not fit, even by Ibn al-Qayyim's own standard, the definition of just siyasah (siyasah 'adilah).
Conclusion
The aim of this review is not to make light of the offence; such an act in the Haram is undoubtedly a grave sin. The question concerns the degree and manner of the punishment. Whether or not the offence was proven, in both scenarios the Shariah's maximum limit was the hadd for zina plus proportionate ta'zir. The principle of Ibn Abbas (RA), the precedent of the Prophetic era, the practice of Ali (RA) and the statement of Shaykh Ibn Baz all point in the same direction: violating the sanctity of the Haram may increase a punishment somewhat, but does not change its nature into death. Added to this are undisclosed evidence, a secret trial and keeping the condemned man's family in the dark, all contrary to the spirit of transparency and accountability in Islamic justice. A principle of the Shariah is that hudud are averted by doubt; to take a life on the basis of doubt is therefore in conflict with the very essence of Islamic law. We therefore call on the Saudi authorities to publish the full verdict and evidence in this case, so that the scholars and researchers of the Ummah can verify whether the law of Allah was properly applied.
