August 02, 2007

The Bloodied Stone
Execution by Stoning
Emadeddin Baghi

A few weeks ago the media published a report regarding the imminent stoning of a man and a woman in Qazvin for the charge of adultery committed with a married woman. Upon hearing the news, Ayatollah Shahrudi, the head of the Iranian Judiciary, immediately ordered the suspension of this act. What happened was yet another manifestation of the important role played by the media in informing Iranian officials about the atrocities that occur hidden from the eyes of everyone. But two weeks later a piece of news stunned everyone. The judge in the case ordered the stoning of the man and since there were not enough pious people present, he implemented the sentence with the help of a few members of the police force. This time the issue of stoning that had been placed in the back burner for a while made headlines and the concern about its repetition came to life again.

I am writing this piece not to engage in sophistry but to address a serious issue that constitutes one of our contemporary legal quandaries. I have been a student of Islamic jurisprudence and knowledge as well as sociology and in recent years I have focused my religious studies on the issue of capital punishment (execution, qessas, and stoning).

The real and fabricated images of stoning in the foreign media and their destructive impact on Islam and Iran are well-known and there is really no reason to discuss them. What motivates me to write is the recent implementation of several stoning sentences and the existence of 9 people in line to be stoned, some of whom asides form being accused of illicit relationships are also charged with murder.

Another motivation is the fact that the head of the judiciary does not consider these sentences as beneficial and has ordered their suspension. Although this order has significantly reduced the issuance of these sentences, still some judges continue to hand them out (the Qazvin example being the latest) since the head of the Judiciary’s order has yet to find legal expression, keeping the relevant laws of the Islamic penal code in force. Hence my plea for legislation that eliminates and replaces stoning as a more definite path for preventing such verdicts.

Considering that Iran’s civil and criminal code is inspired by the Islamic juridical tradition and popular culture is also intertwined with religion, legal reform requires understanding of Islamic jurisprudence (fiqh) and new independent interpretation (ijtihad), the responsibility for which lies with religious leaders (fuqaha). I believe that the use of reasoning regarding the need to eliminate and replace stoning is more beneficial and effective than relying on slogans, false claims, and commanding language. So long as there is hope in someone listening and having an impact through reasoning, words spoken in anger remain unsatisfying and should stay in cover.

Here, I would like to discuss stoning from eight different vantage points:

1. Human Rights
2. The Qur’an
3. Traditional Islamic Jurisprudence
4. As a Case Study
5. Interest of Islam
6. Legal Perspective
7. Emotional Impact
8. Historical and Sociological Perspective

Human Rights

From the point of view of human rights, the stoning sentence is against human goodness and dignity in two ways. First, the right to life is an intrinsic right that cannot be taken away. In other word, it is the right to life that should shape law and be the criteria for forging it and not the other way around. Second, the way the stoning punishment is meted out is violent and an insult to human dignity. Now the question is what is the relationship between stoning as a punishment and Islamic laws?

The Qur’an

The stoning verdict in traditional Islamic jurisprudence (fiqh) is a legal command but it has no basis in the Qur’an. Verse 15 and 16 of al- Nisā (which is said to have been voided with Verse 2 of Nur specifying 100 lashes for adultery) talks about the punishment for adultery for the first time in the following terms: “If any of your women are guilty of adultery, take the evidence of four [Muslim] witnesses amongst you against them, and if they testify, confine them [women] to houses until death claims them, or Allah ordains for them some [salvation] path.” And “if two among you are guilty of vileness, punish them both. If they repent and amend, leave them alone for Allah is kind and merciful.”

Al-Zamakhshari says in Al-Kashshaf that the meaning of this verse is prison for life for the adulterer which was the punishment for this offense at the outset of Islam and was later voided by Verse 2 of Nur which states, “The woman and the man guilty of adultery or fornication, flog each of them with a hundred stripes: let not compassion move you in their case, in a matter prescribed by Allah, if ye believe in Allah and the Last Day: and let a party of the Believers witness their punishment.” At the same time, al-Zamakhshari thinks that the verse was probably not voided and adds that the objective of this verse is to keep the woman in the house to protect her from the repetition of the committed sin and men’s aggression, hence creating conditions for her marriage.

Allameh Tabatabai, one of the prominent thinkers of Shi’i Islam, says the following regarding the two verses:

Interpreters have narrated that when the lashes verse in Nur descended upon him, the Prophet said this is the same remedy and path that God had promised in Verse 15 of al-Nisā. Perhaps this appearance is another appearance in this verse and this is what should be understood from the language of this verse that the command is not permanent and will soon be voided since it is said: ‘and or the Almighty will offer a remedial path.’ In this sentence the issue pf permanent imprisonment of the woman is connected to the testimony of witnesses and not the occurrence of the indecent act. In short, the only time the permanent incarceration command is issued by the sovereign is when four witnesses testify about the woman’s action and if the witnesses do not testify no judgment is rendered, even if the sovereign is certain about the judgment… What exists is the interpretation of incarceration for life but even that is not in prison; rather it is commanded to keep them in homes until their death arrives. This also has a clear reason in order to make the work of Muslims easier and avoid hardship and that is why it is commanded ‘until death arrives’ or that ‘a salvation path is prescribed’; the intent is salvation from life imprisonment. And that there is ambivalence and commanded ‘this or that’ is a reference to the hope that life imprisonment be voided as it did happened since the lashing command voided life imprisonment… and the issue of imprisonment after the death did not become effective. Hence if the verse is about adulterous women, there is no doubt that it has been voided by the lashes verse.

According to what Allameh Tabatabai has said, and the majority of Qur’an interpreters o have said similar things, if Verse 2 of Nur was descended in order to strengthen the previous command there is no reason for the Legislator to avoid mentioning the punishment of stoning and only limit himself to lashing and give the responsibility of stoning (which is the harshest of death punishments) to others. Instead we can say that in such an important instance the Legislator has expressed the command himself and if there was a need for replacement he has done it himself so that the possibility of legislation in such an important instance is not given to others.

And if the verse was descended to lessen the previous punishment (life imprisonment), a harsher punishment such as execution or death by stoning cannot be rendered.

Accordingly, among the two verses generally seen as related to the punishment for adultery, only one remains. This is Verse 2 of Nur which commands 100 lashes for adulterous men and women. Whatever else beyond the 100 lashes has come in Islamic jurisprudence is based on several narrations but these have been questioned by several religious scholars and followers of hadith, such as Ayatollah Seyyed Mohammad Javad Gharavi, as having many weaknesses and deficiencies. According to Gharavi, the important point is that the aforementioned verse expresses a command and it is impossible for it to express only part of a command, leaving the rest unsaid and for the followers to complete.

Execution and capital punishment are the harshest of punishments and the Almighty himself says that the life of one person is equivalent to the life of a whole people and the murder of one is like commanding the slaying of a whole people (al-Ma’idah 32). How is it possible for the Almighty not to specify such a punishment, which is the worst kind of execution in the Qur’an, leaving it in the hands of others while there are many commands of milder punishments regarding other crimes in the Qur’an? Narrations and reports cannot replace the Qur’an. The importance of human life specified in Verse 32 of al-Ma’idah takes precedence. From another side, the narratives of stoning or other narratives quoting the Prophet who rejects killings accompanied with torture even for birds and insects, seeing them as the source of Almighty’s curse, are in evident contradiction to execution by stoning.

In addition the Mu’tazilites and Khawarej (two important sects in Islam) have from the beginning opposed stoning and their reasoning has been that at the outset of Islam stoning existed but the lashes verse voided this punishment. In addition, they argue such a punishment does not exist in the Qur’an and after the lashes verse the Prophet did not order the stoning of anyone. Of course some believe that even before Verse 2 of Nur, stoning as a punishment is not sanctioned.

Some interpreters and religious scholars have said that in stoning existed in the Qur’an but was voided (ibn Qadamah 7 and 156) and A’isha has been quoted to have said that stoning existed in al-Ahzab Sura but was dropped when Othman collected the verses of the Qur’an.

It seems that such a narration is completely false since first of all it is in clear contradiction to all other verses regarding the punishment for adultery. Secondly, its acceptance requires the acknowledgment that the Qur’an has been tampered with, a charge rejected by the majority of Muslims. Given the clear language of the Qur’an regarding the punishment for adultery and the authenticity and importance of the language of Qur’an about the importance of human life, how could we refer to a verse that neither exists nor its existence proven and merely rely on the words of some people who claim that such a verse did exist? Why doesn’t the existing language bring knowledge and proof or documentation while what is not in existence does?

Some, in order to give credibility to stoning in the face of lack of Qur’anic evidence, refer to the fact the caliphs engaged in stoning. But first of all their path (sunnah) cannot be considered the source of a command regarding the life of a human being. Secondly, according to Ayatollah Gharavi, that the caliphs engaged in stoning has not been proven. Thirdly, even if it was proven, the voiding of the holy book by the path of the caliphs is not proper. The sunnah, only if it is successively and with certainty related to the Prophet, can be considered a specification of a command and specification is different from voiding. Fourthly, such a specification can only limit the range of outcomes and exclude a person from the command. In other words, such specification can only delimit and not expand the command since the basic principle in Islam is not harshness and there are many verses and narrations associated with the religion that confirm this principle.

As such, the punishment of death for different kinds of adultery do not have Qur’anic backing and in various verses regarding prostitution and adultery there is merely reference to the indecency of the act and eternal torment associated with it and not capital punishment. In addition, as will be shown below, in traditional Islamic jurisprudence certain conditions have been specified that if not fulfilled, particularly since adultery is usually committed in private, punishment is irrelevant/useless. Another point is that this act has been identified by some as the right of God, which means that only God can unearth the true intentions behind it. With the exception of cases related to the immature and unwise, man cannot judge. This means that the excepted cases are not God’s right and create private rights.

Traditional Islamic Jurisprudence

Although stoning has no basis in the Qur’an but in traditional Islamic jurisprudence it is relied upon on the basis of ways of the Prophet (sunnah) in their many narrations and reports about the implementation of the sentence. Regulations regarding stoning in traditional Islamic jurisprudence are as follows. Each crime can be proven in two ways:

1. Sight
2. Confession

The proof of the crime of adultery through sight requires the fulfillment of certain conditions:

1. The accused must be married.
2. The accused must have access to the spouse.
3. The accused must be endowed with reason.
4. The accused must be mature.
5. The accused must be endowed with free will and engaged in the act without force.
6. The accused must be knowledgeable about the punishment.
7. The accused must be knowledgeable about the subject.
8. The claim to lack of knowledge about the punishment or subject in case the veracity of the claim is probable, without the existence of a witness, will be accepted upon the oath taken by the accused (Article 66, Civil Code)
9. Testimony of four men.
10. All four must be just.
11. Their justness must have been proven.
12. They must have witnessed the crime simultaneously.
13. They must testify simultaneously and if they did not witness the crime simultaneously or one testified later, all four are subject to lashes.
14. All the qualities and details of the testimony should be the same and if, for instance, one or two persons report from various places or angles, the crime is not proven.
15. The witnesses should testify willingly without any reservations.
16. Their testimonies should attest to them being witness to the act of adultery is its “completeness,” meaning that a thread cannot pass between the two bodies, so to speak.

All the 16 conditions must be fulfilled simultaneously for the crime to be proven. This is while the conditions of proof through sight (particularly the last one) are impossible to fulfill and indeed some religious scholars have considered such proof impossible. The question then arises regarding why such a harsh punishment has been forwarded at all. A possible answer is that in the past fourteen century, public opinion regarding the crime has been such that direct rejection of any punishment would not have been possible. Hence the Legislator has acted in such a way as to make the proof of the crime impossible and yet acknowledge the indecency of the act to which the society has been sensitive and say that if such a crime is proven, it is so abominable that it is deserving of such a punishment.

Bu the other way of proving the crime is confession. This approach is also as difficult since first no one voluntarily steps forward to confess to a crime that is considered so abominable in public opinion. Maturity, reason, free will, intent, and clarity are the five conditions for the veracity of the confession. Secondly, even assuming that a person confesses, the advice for the Islamic judge is to not accept the confession if possible. It is narrated that at the outset of Islam a man went to the Prophet and confessed to adultery. The Prophet rejected the confession, saying that he did not do such a thing. The man again insisted on his confession and the prophet again rejected his words, banished him, and assigned some individuals to investigate in his tribe and see if the man is endowed with reasonable faculties, hoping to use this excuse as a means to not implement the sentence. Everyone testified that he is endowed with reason. The man came back to the Prophet and insisted on his crime and finally the Prophet was forced to accept his confession. Assuming the veracity of the narration, this example shows that if exceptionally a person is found who confesses, as much as possible efforts should be made not to accept the confession. The key here is that the person must have confessed in a free environment, without force, and not in prison or under the pressure of interrogations or threats. As such on the basis of the mere fact that a person has confessed in an environment that is not free, we can question and reject the confession.

In addition, even if exceptionally a person is found that insists on his confession, a path for escape must be left open in the following ways:

1. The confession is null after denial. This means that whenever the person disavows his confession, the stoning sentence must be lifted (there are even narrations that suggest the ruler can pardon the adulterer without repentance).
2. In tradition Islamic jurisprudence the prevention of the sentence on the basis of any excuse is also allowed, as evidenced by Imam Ali’s words to a person sentenced to stoning that,” because you are young, there is no obstacle in showing mercy.”
3. If no excuses are found in preventing the sentence, then the lower part of the body should be placed in a pit in such a way so as to allow for the possibility of flight and if the person can get out, then he or she can no longer be punished.
4. Those who come to implement the sentence must be the most just among the pious.
5. They must not be polluted or in menstruation. This condition along the previous one overrules the condition of sufficient numbers for the implementation of the sentence.
6. Small stones must be used (perhaps in order for the person to be able to flee before serious injury).

Again it is important to reiterate that all these commands regarding stoning are based on the assumption of proof regarding a crime that according the discussed approaches in traditional Islamic jurisprudence cannot be proven

The viewpoint of Ayatollah Montazeri regarding adultery with a married woman can be considered a summary of the views expressed in traditional Islamic jurisprudence. In response to many inquiries by some followers as well as domestic and foreign human rights organizations and news outlets, he writes on 12 July 2007:

The sentence of stoning existed in the Torah in an extensive manner, but in Islam it only exists regarding adultery with a married woman under specific conditions and the way to prove it are: 1) Testimony of four just individuals who have witnessed the act with their own eyes, the realization of which is very unlikely; 2) The confession of the accused, repeated four times, in a free environment and atmosphere and not in prison or under pressure. And the implementation of the sentence immediately after the knowledge of the judge is problematic and what recently happened in Takistan is against the standards and if the individual after confession disavows the confession; the disavowal according Islamic jurisprudence is acceptable and in case of confession the individual has the right of flight and if he flees, his pursuit is not acceptable and if in a time or place the implementation of the sentence leads to the weakening of religion, its implementation must be avoided. Given the characteristics mentioned, in reality sentence of stoning is merely a scarecrow for people to abstain from a great sin.”

As such in traditional Islamic jurisprudence there is also no Qur’anic reasoning for stoning. The only reference is to the consensus of Islamic jurists and several narrations (not definite sunnah), with questions regarding both the realization of the consensus as well as the documented narrations. In any case, as it was mentioned above, some Islamic jurists do not consider reliance on narrations regarding the death sentence as acceptable.

Case Study

The stoning sentences implemented in Iran in the past few years have not only been against human dignity and human rights standards but also did not follow the legal standards of the traditional Islamic jurisprudence for the following reasons:

1. Individuals confessed under prison conditions and after abuse.
2. Their confessions were accepted easily and without much resistance.
3. Many of the individuals disavowed their confessions but the disavowals were not accepted.
4. There were many excuses and reasons that could have been used to null the sentence but attention was not given to these.
5. During the implementation of stoning the criteria of the presence of the most just, with due attention to purity, was not observed.
6. In many cases, officials of the government (in prison and among the police force) implemented the sentence.
7. It was observed that large stones, one of which sufficed for the killing, were used.
8. Individuals that were able to flee the pit were again placed in the pit in such a way to make flight impossible and be killed.

There are many examples of violations but here reference will only be made to the latest case of stoning in Takistan in the Qazvin province:

1. The woman who married Jafar (the man who was stoned) had run away from her husband who had forced her into prostitution in order to lead a more decent and healthy life.
2. This woman had filed for divorce from her previous husband.
3. The head of the judiciary had stopped the implementation of her stoning sentence and since this order was both legal and Islamic, it had enough weight to prevent his stoning as well.
4. Government officials participated in the implementation of the sentence.

The head of the Judiciary, using his legal authority, had ordered the stopping of the sentence implementation. As such the stoning of Jafar was effectively against the law and Islamic jurisprudence and could be considered intentional murder and deserving of punishment. If a student is charged for propaganda against the regime and imprisoned for just a slogan or a piece of writing that has very little impact, why shouldn’t an illegal and un-Islamic act that is used as evidence of murder against the Islamic Republic throughout the world not be punishable? If in the past, not on the basis of human rights standards but traditional Islamic jurisprudence, stoning was resisted and its implementers punished, today we would not be witnessing such illegalities. While today such harsh methods are used to confront the way women dress in the streets, very little sensitivity is shown to instances that deal with the lives and dignity of human beings. This shows that what is of concern is not really Islamic law but power. The government seems to perceive that since the basis for its legitimacy is religion, if some regulations are not implemented or are questioned, the basis for its political legitimacy is shaken and hence it cannot compromise and must go all the way even with sentences whose legality are questionable.

Interest of Islam

Let us assume that the strict regulations of traditional Islamic jurisprudence did not exist and proving adultery was easy, there is another principle that if the implementation of a command is not to the interest or benefit of Islam, it can be suspended. Ayatollah Khomeini, using the same principle, said that even prayer, which is one of the pillars of Islam, can be suspended because the main criterion is the interest of religion and not its commands. Of course the interest or expediency principle has been criticized for being temporary, requiring the return of the command when conditions change. But experience has shown that with major social changes the suspension of some commands on the basis of interest or benefit or Islam will not be temporary. Some interests such as those based on the achievements of human rights will be permanent.

A judge that is oblivious to the interest of the Islamic society and renders a judgment without taking it into account is not competent to judge. It is the truth and common interests that matter, not personal or trivial interests.

Legal Perspective

In studying many cases of adultery involving married women, I have found the main source to be the inadequacies of the legal system in Iran. In several cases, the forced marriages of daughters led to family murders and violence and in some other cases disobedience on the part of the wife and ultimately hidden or illicit relations with another man. In Iranian laws, the father’s agreement to marriage is required. This requirement can of course safeguard the rights of daughters in marriage but improper use of this requirement, particularly in rural areas and among the uneducated, has caused forced marriages for girls who at times are between 15 and 18 years old and forced to marry men of 50 or 60. In addition, lack of the right to divorce for women who are abused by their husbands forces them to put up with extremely difficult conditions. As a result, in recent years, for instance, we have been witness to a number of suicides in the Ilam Province. The large numbers of female suicides in Ilam (400 cases of self-burning, 300 of which were women) are largely caused by forced marriages, age difference between husbands and wives, and family violence.

The incident in Qazvin is another example. After fleeing from her first husband, Mokarameh files for divorce. Iranian courts usually do not respond to these divorce requests in the hope that with the passage of time a compromise is reached and there is no need for divorce. Accordingly, for several years Mokarameh’s request remains unanswered while in divorce cases the reasons for the filing for divorce, in this case her forced prostitution by her husband, should take priority. In reality, Jafar and Mokarameh could and should not have been convicted of adultery with a married woman essentially because her previous husband had forced her into prostitution and a man who forces his wife into such an unethical, illegal and un-Islamic situation essentially voids the marriage contract and the woman cannot be considered the legal and religious wife of the man.

The existence of such problems in the legal system of Iran, particularly regarding the rights of women, has created conditions for the emergence of many social problems. It could conceivably be said that some of the ones who commit family violence, flee, engage in honor killing or illicit relationships are themselves victims of a legal system in need of reform. Approaching the demand for reform politically only inhibits needed reforms. Some think that the acceptance of some legal reforms is backing down from the position of power. This is while there are disastrous consequences to the ignoring of legal reforms. At the same time, illogical approaches in the demand for legal reform that threaten those in power in ways that are not conducive to reform are also ultimately responsible in the prevention of necessary reform. There is a real need for dialogue, explanatory effort in convincing authorities regarding the need for the reform of the legal system and regarding women and children related laws.

Emotional Impact

Mokarameh, the woman sentenced to stoning in Qazvin, has four children from her previous husband and two from Jafar, one of whom is 11 years old. Eleven years has passed from the marriage of Jafar and Mokarameh, eight of which have been in prison awaiting execution by stoning. During this period, what has happened to their children? The young and innocent children who have no one to rely on and have to carry the heavy weight of their parents’ dishonored name? Can one expect these children to lead normal lives? The same situation applies to the parents of the convicted couple and their siblings? Think about similar heartrending and disastrous situations that have occurred many times over. Think about it for a second. If something similar happens to your family, what will happen? Do you think these events are occurrences that people are looking forward to or are willing to lay their lives for? Just think for a second about the incredibly destructive impact these sentences have on whole families? How could we easily pass by these painful incidences?

Historical and Sociological Perspective

Stoning, which prior to Islam was described in Judaic law and since it was mentioned in the Torah was implemented extensively, did not find its way into the Qur’an and was not affirmed by it. However, since it was among forceful societal traditions, its clear rejection was not possible. At the same time, stoning was prevalent in Europe, the United States, and Islamic societies for centuries after the outset of Islam. Stoning is among punitive laws that were prevalent throughout the Christian, Jewish, and Islamic societies until 18th century. In 17th century in some western societies capital punishment was handed out for adultery, including in the United States as reported by Alexis de Tocqueville. From the end of 18th century a new era identified by Durkheim as the age of reparation laws began, which today expands to half of the world. Under the previous age of punitive laws the objective was to impose pain, harm on the convicted, extracting vengeance, but in the new age the objective is to keep the criminal away from the society, preventing harm to the society, and also rehabilitating the criminal.

Islamic jurisprudence is also impacted by social conditions. According to Ayatollah Motahhari the fatwa of an urban Islamic jurist smells urban and the fatwa of a rural one smells rural. Accordingly, in the new age, stoning is not something popular or acceptable as evidenced by the refusal of people to be present at such events. And this is why many clear-sighted Islamic jurists consider it as detrimental to Islam. And it is on that basis that Ayatollah Shahrudi, the head of the Iran’s Judiciary, has ordered its suspension. What is astounding, however, is that the secretary for the Human Rights Headquarters of the Judiciary presents stoning as though is it among the integral commands of Islam, saying “we have to correctly justify stoning. We have made a revolution so that Islamic commands can be implemented…. We will never sacrifice Islam to the challenges related to human rights” (ILNA, 30 May 2007). Later he says, “Stoning is based on Islamic law and is not against or in opposition to any of the Islamic Republic’s international obligations.” (E’temad-e Melli, 15 July 2007).

Summing Up

Our criterion for judging stoning and other laws and commands is human rights. This criterion is based on a prior principle that human rights have no conflict with religion. In a prior juridical research which relied on the opinion of a well-known religious scholar, entitled Human Rights and Rights of the Pious, it was shown that the basis for Qur’anic thought is the belief in intrinsic human generosity and dignity. Hence Islamic jurisprudence or legal system must be formed on that basis. Although the implemented stoning sentences in recent years did not comply with the standards of traditional Islamic jurisprudence and even went against it, the point of this writing is to say that stoning has no Qur’anic basic, and is not to the interest of the society and Islamic principles We can and must abandon it as a punishment and its abandonment is in no way against religiosity or religion.

In many areas such as juridical commands and regulations regarding capital punishment, stoning, and minimum age for the criminal culpability for children we are in dire need of new interpretations (ijtihad). Islamic scholars who cannot practice new ijtihad regarding recent events and issues will disappear in history along with their ideas. The need is for the validation of human experience and beings and the reform of laws on that basis.