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[l] note: contemporary abuse of the dissolution of the apostate’s marriage [/l]
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The ruling on the dissolution of the apostate’s marriage has recently been employed in countries like Egypt by Islamist groups and lawyers to enforce the divorce of liberal-secularists of Muslim heritage who have made what are considered to be "apostate" statements. It can also be used to split up couples where one member converts from Islam.
According to Islamic law, to bring a charge a plaintiff must have a direct legal interest manifesting how the plaintiff is being harmed by the accused. The legal tool of hisba is invoked in such cases as it is based on an Islamic doctrine, which states that each Muslim has the responsibility to enforce ‘Islamic behaviour’ in his society. Where one member of society deviates from this, every Muslim is offended and therefore has direct interest.
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[l] Muslim scholars discuss apostasy [/l]
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Having examined apostasy in the context of the sources of Islam, it is important to relate it to the Islamic social context. In view of the scarcity and ambiguity of Qur'anic references to any humanly imposed penalty for apostasy, how did such an emphasis on capital punishment for apostasy arise? Muslim apologists often say that it was in large measure due to the activities of some Jewish and Muslim hypocrites in the very early years of Islam[48] who conspired to create confusion in the newly formed Muslim community by professing to convert to Islam and then renouncing it. This alleged conspiracy, whose supposed goals were entirely political, was dealt with ruthlessly by Muhammad who ordered those responsible for the treachery to be killed.
Therefore, in spite of the Qur'anic statement forbidding "compulsion in religion" (2:256), later Muslim writers seem to have misunderstood the contexts in which the above punishments were implemented. They fastened on apostasy as the action to be punished rather than on the political conspiracy that was the alleged reason for the apostasy. The contemporary Lebanese scholar, Subhi Mahmassani, claims for example that Muhammad never killed anyone merely for apostasy; rather the death penalty was applied when apostasy was linked to an act of political betrayal of the Muslim community.[49] Zwemer believes that early Islamic law and practice regarding apostasy were probably less rigid and less severe than those codified after Islam had spread beyond Arabia. He asserts that many of the hadith regarding apostates were created to express later tendencies for which divine authority and Muhammad’s example were needed.[50]
It seems that the basic reason for the application of the death penalty to apostates is that apostasy is seen as treason. The historical origins of the concept can be seen in the actions of the hypocrites and in the Ridda (apostasy) rebellions against the first Caliph Abu-Bakr. Both were attacks upon the political authority of the Muslim ruler, as opposed to simple conversion to another faith. Because Islam is seen as a total way of life with no separation of religion from politics and the state, and because Islam is accepted as the basis of the legitimate state and its legal system, desertion from Islam is dealt with as political treason. The result of this merging of political and religious issues is that in Muslim-majority countries conversion from Islam to another religion is viewed as treasonable and shameful defection. During times of war defection in many states is punishable by death, and as Islam traditionally considers itself to be in a perpetual cosmic battle with kufr (infidelity), apostasy can be seen as betrayal and treason.
Dr Y. Zaki (a leading British convert to Islam), emphasised this viewpoint in a discussion on BBC radio in 1991: "Islam is not just a religion, it's a state, and Islam does not distinguish between sacred and secular authority . . . apostasy and treason are one and the same thing." Since treason is punishable by death, he argued, so too is apostasy.[51]
Abul A‘la Mawdudi represents a similarly severe stand, arguing that Islam is not simply a religion like Christianity, but a complete order of life embracing all spheres and serving as the basis of society, state and civilisation. As such it is cannot allow itself to be made "the toy of individual free wills". Fundamental differences cannot be accepted in such a system (minor differences are), and an apostate who has demonstrated that he is not willing to assimilate into his society’s order must be cast out of it, for he has rejected its very foundation. Mawdudi states that it is preferable for an apostate to emigrate from a Muslim state, but if he stays he becomes a great danger to society, spreading a malignant plague among the population which must be eliminated by the death penalty.[52]
Abdurahman Abdulkadir Kurdi, professor of Qur’an and Sunna at Umm al-Qura University, Mecca, Saudi Arabia, makes the same point, stating that:
"The law of apostasy is equal to the man-made law of treason, with one important distinction; it is not tantamount to denouncing or breaking with one's country. Renouncing Islam is regarded as a betrayal of faith in God Himself and a denunciation of kinship. Capital punishment is the penalty in man-made law for treasonable action and has become recognized internationally as the norm or standard law for such a crime."
Seeking to emphasize the merciful nature of Islam he goes on to say:
"Repentance is required before executing the penalty. Sentence must be delayed for at least three days if there is hope of repentance, even though the penitent is not sincere. Will any sort of man-made law accept such repentance in a case of treason? No such understanding of human weakness has been exhibited among the community of nations yet."[53]
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cont.
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