Response to the official statement of the Al-Azhar Legal Research Commission On the Call for a Moratorium published on March 30th, 2005.

The Commission primarily advances three arguments in its official statement:

1. 
   

   The statement raises the initial point : « Whoever denies the hudûd (Islamic penal code) recognized as revealed and confirmed or who demands that they be cancelled or suspended, despite final and indisputable evidence, is to be regarded as somebody who has forsaken a recognized element which forms the basis of the religion.” One of the Members of the Commission, Dr. Mustapha ash-Shuk’a affirms that « the hudûd are a part of the religion, they are Qu`ranic and they can be neither subject to debate nor discussion. »



2. 
   

   The point is then raised : »The hudûd are known and Tariq Ramadan is demanding that they be stopped because it is hurting the message of Islam : this is a refuted matter « 



3. 
   

   Finally,  on the example of Umar ibn Al-Khattab (may peace be upon him), Dr. ash-Shuk’a affirms that “during given periods of time, the Caliph suspended the punishment in instances of war, and then it was re-applied. We are not today in a situation of war which would enable us to suspend these applications. One could suspend the application of hudûd in Iraq, because it is a country at war but this punishment cannot be suspended in Egypt or in other Islamic countries. »

To these three points, I would like to respond clearly and precisely : 

1. 
   

   In the Call which was published on March 30, 2005,  I have never denied the  texts exist (qati’yya ath-thubût wa dalala) concerning the hudûd. Nothing in the Call says or implies that. I do not dispute that these texts are authentic and determined as an essential part of the religion (mal’ ûm min ad-dîn bi-darûra). 



2. 
   

   The Call never stated that the hudûd is hurting Islam. It only reiterated that their application in the current social and political contexts is treason because the conditions for the application of these punishments are not met. The Commission itself requires this, as is stated in their official statement : « The authorities who apply the hudûd must supervise and guarantee that the conditions are strictly met. » 



3. 
   

   Dr. ash-Shuk’a affirms that Umar ibn Al-Khattab (may peace be upon him), suspended the application of the punishment with regards to theft because it was during a period of war. The scholars have effectively diverged as to whether the justifying cause (al-`illa) was because of the war or the famine, per se, or because the conditions required for the application of the punishment was impossible to meet.(`adam tawfîr ash-shurût). My humble opinion is that it was because the conditions required for the application of the punishment was impossible to meet. In fact, my questions  to the ulamâ’ (as one can find it, among a series of others, within the Call) are:

– Can the social, political, legal and economical conditions be recreated in any Muslim majority society so that this punishments can be applied ?

– Why is it always the poor and the women who are punished or that illiteracy is the situation for the majority being penalized?

– How can one accept these treatments when women and men do not have legal defence worthy of its name ?

– Can we not think of a step by step reform of the legal system which would make it possible to reform the behaviour of women and men by ensuring their basic rights, without hiding behind irreversible punishments which do not respect the required conditions ?

It is to these questions that I would like the Commission to respond. I never called into question the texts and their definitive character (qat’iyya). I question their interpretation (for stoning and the death penalty) and the conditions for application which, in my opinion cannot be met (for all punishment). 

To this end, the example of Umar ibn Al-Khattab (may peace be upon him) remains an example which we must contemplate : it  dealt with the content of an indisputable and authentic Qu`ranic text (qat’i ath-thubût wa ad-dalala) and suspended the application of it.  The factor « time » (a suspension of a few years or longer duration) is not in itself an argument. The only question is to know whether or not the conditions are or can be recreated in a given society. 

I hope I have clarified the content and the scope of this Call. 

Wa Allahu a’ lam wa a’ lâ wa ahkam.

Dr Tariq Ramadan

Geneva