We need to rethink blasphemy law: UK scholar

There is a law of apostasy or rida and the offence of blasphemy is subsumed under apostasy, says Kamali.

Blasphemy as a separate offence does not exist in Islam says Professor Mohammad Hashim Kamali, an Islamic jurist and author of ‘Freedom of Expression in Islam’.

There is a law of apostasy or rida and an assumption that one who blasphemes the essentials of Islam also becomes an apostate. “The offence of blasphemy is therefore subsumed under apostasy” he explains. However, he argues that there is doubt regarding the question of whether capital punishment for apostasy, and by extension for blasphemy, stands on a clear footing.

Although there are about 20 references to apostasy in the Quran, he explains, none of these references prescribes the death penalty. One who turns his back on his faith, who renounces his faith, the person incurs the curse and the wrath of Allah, but no punishment is given says Professor Kamali. It is only in the hadith that punishment, the death penalty, is prescribed.

Professor Kamali explains the context in which this hadith arose. “After the Prophet’s migration to Medina several instances of apostasy were recorded. There were some people who renounced Islam, made derogatory remarks about the character of the Prophet and his mission. Immediately after doing so they would leave Medina and join Mecca. So eventually the Prophet uttered hadith, that one who changes his religion shall be killed, and this became the law of apostasy” he said.

In Professor Kamali’s opinion this hadith is in need of interpretation. “It is not categorical” he says. “It says ‘one who changes his religion shall be killed’. So, on the face of it a Hindu who becomes Muslim also falls under this saying. This is not the intention of the hadith, so technically it is in need of interpretation” he adds.

According to the rules of jurisprudence, explains Professor Kamali, any text which does not stand on its own feet and depends on interpretation is not decisive. Once a level of interpretation is attempted then the text becomes open to other levels of interpretation.

Professor Kamali considers whether ijtehad is justified or not. “In my own understanding this hadith was uttered at a time when apostasy was equal to treason and a hostile attack on Islam. Now we are in different circumstances, we need to rethink and perhaps exercise ijtehad” he says.

Since death is the ultimate punishment, argues Professor Kamali, if the hadith itself is weak it is an ahad hadith it is not a mutawatir hadith. A solitary hadith suffers from another weakness and that is it is not categorically proven to be 100 per cent accurate. “Therefore there are weaknesses in the hadith and we need to examine it from the viewpoint of other Quranic principles such as freedom of religion. There is a conflict between these principles and that will be the subject of interpretation and ijtehad” he expounds.

There is no Quranic injunction or hadith which says that blasphemy is subsumed by the offence of apostasy. Professor Kamali explains that jurists or scholars have assumed that anyone who launches a hostile attack on the essentials of the faith in such a way that it offends the sensibilities of the believers also renounces Islam at the same time and therefore becomes an apostate.

Asked whether non-Muslims are treated any differently in these matters, he said that a non-Muslim cannot by definition commit apostasy and this is why to equate blasphemy and apostasy does not stand and there must be a basic difference. But nevertheless if a non-Muslim pronounces words and blasphemes the essentials of Islam and offends the sensibilities of believers then he does commit blasphemy.

Regarding proof of intention and whether this is a requirement, Professor Kamali was of the view that in principle intention is not a requirement provided that the words are absolutely clear. However, if there is an element of mistake or error or someone expresses regret then hadood punishment would not apply, he says. “If the person repents or expresses regret or there is any element of doubt then the judge may award tazir, or deterrent punishment or do whatever he deems appropriate in the circumstances” he explains.

Professor Mohammad Hashim Kamali is Founding Chairman and CEO of the International Institute of Advanced Islamic Studies, Malaysia (2007 — continuing).

Published in The Express Tribune, February 5^th, 2011.