Q&A: ‘Arab Legislations Go Far Beyond Islamic Law’
CAIRO, May 29 (IPS) – Is Islamic law — Sharia’a — the only legal instrument regulating the death penalty in Arab and Muslim countries?
“No, the death penalty in most Arab and Muslim countries is regulated and applied according to positive laws — man made law — and not according to Sharia’a,” says Tahar Boumedra, Penal Reform International’s (PRI) Regional Director for the Middle East and North Africa.
In an interview with IPS journalist Baher Kamal, Boumedra explains how this issue was debated during a three-day regional conference on the death penalty, which ended in Alexandria on May 14.
“Some delegates — they came from nine Arab countries — tried to use Islamic law to argue against the abolition of the death penalty,” says Boumedra. “But actually death penalty laws go far beyond anything Sharia’a law ever sought to impose.”
The conference, co-organised by PRI and the Swedish Institute in Alexandria, issued the “Alexandria Declaration” calling for a moratorium on executions as a step towards abolishing the death penalty in the Arab region.
IPS: The “Alexandria Declaration” calls on Arab states to comply with the U.N. General Assembly’s resolution on the death penalty of last December. This called for states that have not yet abolished the death penalty to establish a moratorium on executions and work progressively towards abolishing capital punishment. Did your discussions in Alexandria achieve any development in this regard?
TAHAR BOUMEDRA (TB): Well, to a certain extent, our discussion in Alexandria reflected somehow the diversity of opinion on the death penalty expressed in the Third Committee of the U.N. General Assembly during the drafting of the moratorium resolution.
At the end of our discussions we agreed to state in the Declaration that the death penalty was a “violation of the most fundamental human right, the right to life”. We also agreed that this sanction had not succeeded anywhere in deterring criminality or preventing it.
IPS: Did you focus on the death penalty in the Arab region in particular or in the Islamic countries in general?
TB: We focussed on the Arab region. We brought together national coalitions and civil society representatives from the region — Algeria, Egypt, Jordan, Iraq, Lebanon, Morocco, Tunisia, the United Arab Emirates and Yemen. We had a presentation on the Turkish experience as a Muslim country that abolished the death penalty.
Regional and international organisations such as the Arab League, the European Commission and the U.N. High Commission on Human Rights also attended.
IPS: But the debate was mostly about the role Islamic law plays in the application of the death penalty?
TB: Some delegates did use Islamic law to argue against the abolition of the death penalty. But they were reminded by the Jordanian scholar, Professor Hamdi Mourad, and others that the death penalty in the Arab world is in fact prescribed by positive laws that have nothing to do with Islamic law — and, in some instances, are actually a violation of Islamic law.
I agree with this view. My concern is that Arab positive laws prescribe the death penalty excessively. The laws go far beyond anything Sharia’a ever sought to impose.
In the Alexandria Declaration we specifically appealed to all Arab judges to refrain from using the death penalty in favour of more humane alternatives. We also called on the judges to adhere to international standards.
IPS: Such an appeal seems to suggest that there was a consensus of opinion that the legal systems in the Arab region, quite aside from the arguments over Sharia’a and the death penalty, do not meet international standards?
TB: Most Arab judicial systems are currently undergoing major reforms. This implicitly acknowledges serious difficulties in the delivery of justice.
In my view, it is a crime to empower a dysfunctional justice system with the application of such an irreversible punishment as the death penalty.
IPS: Recently, there has been a great deal of controversy over Article 7 of the Arab Charter on Human Rights. This appears to allow for the possibility of applying the death penalty against minors. How could the Charter ever have been ratified with such an article?
TB: We did discuss this in Alexandria. Also delegates expressed astonishment at this article. We urged the Arab League member states to consider amending this article to eliminate any possibility of applying the death penalty to children under 18 years of age.
It should be quite clear that ratifying the Arab Charter on Human Rights without expressing a reservation about this Article 7 (a) is a violation of the domestic law of the ratifying states as well as international law.
The prohibition of the use of death penalty against children is a peremptory rule from which no derogation is permitted.
IPS: Algeria has being observing a moratorium on executions for years. But Algerian courts are still issuing death sentences – several dozens of people were condemned to death only in the past days.
TB: In Alexandria we expressed satisfaction that Algeria was the sole Arab nation to vote in favour of the U.N. moratorium resolution last December. The Algerian vote then was consistent with the country’s practice in observing a de facto moratorium since 1993.
But Algerian courts should refrain from passing down death penalties since these are not being enforced anyway.
It is hoped that Algeria’s draft penal code currently under consideration will confirm its consistent practice of not carrying out the death penalty. There is a reasonable expectation that the death penalty will be eliminated from its provisions.
IPS: Algeria is not the only Arab country that appears to be moving in this direction. Lebanon has even drafted a law abolishing the death penalty. Why hasn’t this been adopted into law?
TB: The debate on the death penalty in Lebanon has reached an advanced stage in the civil society. It was only the long-running constitutional crisis in Lebanon that delayed it being put on the parliamentary agenda.
IPS: What are the possibilities of the Yemeni parliament abolishing the death penalty?
TB: Well, abolishing the death penalty in Yemen is not yet on the official agenda. The priority for the time being is to reduce the scope of the application of the death penalty.
There are approximately 315 cases where the death penalty applies in Yemen.
If these were cut down at least to the level permissible by Sharia’a — five cases at most — the country would have gone a long way towards abolition. Such an approach is advocated by religious scholars and would be welcomed by tribal leaders.
In the Alexandria Declaration we issued a general appeal to all Arab nations to do the same and reduce the number of offences for which the death penalty is imposed.
IPS: Out of 22 Arab countries, 15 voted against the U.N. moratorium resolution (Bahrain, Comoros, Egypt, Iraq, Jordan, Kuwait, Libya, Mauritania, Oman, Qatar, Saudi Arabia, Somalia, Sudan, Syria and Yemen), four abstained (Djibouti, Lebanon, Morocco and the UAE) and one was absent from the vote (Tunisia). Can you see a day in the future when all the countries in the Middle East will have abolished the death penalty?
TB: I am hopeful that there will be a day when the Middle East and North Africa will step out against the death penalty.
This day is closely linked to the countries’ advancement and achievements in the field of human rights. The more the universal values of human rights are upheld, the more we will advance against the death penalty in the region.
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