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Hassan Farshchian

According to the fact that in the legal system of the Islamic Republic of Iran, jurisprudence is considered one of the main sources of legislation, jurists and experts who agree with the death penalty for drug offenders have tried to justify the execution of these criminals based on one of the legitimate punishments. These four justifications include “warfare”, “corruption on earth”, “retaliation”, and “governmental retaliation”.

First principle: Execution based on combat.

Based on the first argument, drug traffickers are subject to the law of combat and the punishment of combat according to verse 33 of Surah Al-Ma’idah is execution: “The punishment for those who fight against God and His messenger and strive to spread corruption on earth is nothing but execution, crucifixion, cutting off their hands and feet on opposite sides, or exile from the land. This is their disgrace in this world, and they will have a great punishment in the hereafter.” (1).

Although scholars consider “equipping weapons” and “arming” as essential elements of combat, these descriptions are examples and not limited to these cases. Therefore, even if drug traffickers do not use weapons, they are still considered combatants because they have committed corruption on earth.

Criticism of Executing Drug Offenders Based on Combatting:

Superior reasoning includes two premises.

Introduction: Drug traffickers are warriors.

Second Introduction: The punishment for a combatant is execution.

Result: The punishment for drug traffickers is execution.

Both of these introductions are incomplete and incorrect, and the conclusion drawn is also contrary to reality.

According to the first introduction, are drug traffickers considered as warriors?

To define combat, it is better to refer to the fatwa of the founder of the Islamic Republic of Iran, Ayatollah Khomeini, to understand who is considered a combatant based on his fatwa. In his Tahrir al-Wasilah, he defines a combatant as follows: “A combatant is someone who takes out their weapon to threaten and intimidate people, or equips it and intends to cause corruption on earth…” (3).

Based on this definition, all three of the following elements must be present in regards to a person in order for them to be considered a combatant: “drawing a weapon on people”, “intending to threaten people”, and “having the intention to cause harm on the ground”.

Regarding drug traffickers, the first and second elements are definitely not present. However, if these traffickers are armed and commit armed acts, it is outside the scope of our discussion as armed acts are considered a separate crime.

According to the second introduction, is the punishment for a combatant execution?

According to the explicit text of the Quran, the ruler of the law is free to choose one of the following four punishments: execution, hanging, amputation of limbs, or exile. Mr. Khomeini also acknowledges this in his book “Tahrir al-Wasilah”: “The strongest option is for the ruler to choose between executing the combatant, hanging them, amputating their limbs, or exiling them in the implementation of the prescribed punishment.” (4).

The restriction of the punishment for a combatant to execution, as stated explicitly in the Quran and in the fatwa of Mr. Khomeini in Tahrir al-Wasilah, is contradictory. They believe that in the continuation of the above-mentioned issue, it is appropriate to choose a punishment for him that is proportional to his crime, for example, if he has killed someone, he should be put to death or hanged, and if he has stolen property and cut off his hands and feet as mentioned, and if he has only stripped off his weapon and frightened the people, he should be exiled…”. If we consider drug smugglers as combatants, according to the same fatwa mentioned in Tahrir al-Wasilah, the ruler of Sharia should choose a punishment that is proportionate to their crime among these four punishments. Drug offenders are not guilty of murder and their maximum punishment could be exile or in some cases, imprisonment and prison could be substituted for exile

Second basis: Execution based on corruption on earth.

According to the second theory, drug traffickers are considered “corrupters on earth”. In the Quran, the punishment for corrupters on earth is mentioned alongside the punishment for war, which is “execution” according to verse 33 of Surah Al-Ma’idah, as mentioned above. In some other verses, the term “corruption on earth” is also mentioned as a separate title. (5).

Is the title “Corruption on Earth” an independent title from the title “Fighting” or are these two titles collectively referring to the subject of the four punishments mentioned in verse 33 of Surah Al-Ma’idah?

If the two titles “warrior” and “corrupt” are the subject of an accusation, meaning “a corrupt person who is also a warrior”, then the title “corrupt” is not an independent title and will be examined in the same previous discussion about the warrior. But if the two titles are independent, some of the accused who are not warriors but are corrupt can be sentenced to the above punishments.

According to the majority of jurists, it is not permissible to execute a corrupt individual who is not a combatant.

According to most jurists, there is a general and absolute relationship between “combatant” and “corrupter on earth”. This means that every combatant is a corrupter, but not every corrupter is a combatant. This is because every combatant, by committing combat, has also committed corruption on earth, but some corrupters may be corrupt without having committed combat. Mr. Khomeini, like most jurists, did not believe in an independent effect for the corrupter on earth, meaning that if a person was a corrupter but not a combatant, he could not be sentenced to execution based on the above verse.

b) According to the minority view of the jurists, it is permissible to execute a corrupt individual who is not a combatant.

The minority group of scholars consider the title “mufsid fi al-ardh” as an independent title, and for a mufsid fi al-ardhi who is not even a combatant, they consider the ruling of verse 33 of Surah Al-Ma’idah to be applicable and therefore, they deem his execution permissible based on the aforementioned verse.

Ayatollah Makarem Shirazi is among this group of scholars and considers the execution of drug traffickers permissible and even necessary in some cases, due to their being corrupt on earth. Another scholar in this group was Ayatollah Montazeri, although he later changed his opinion.

When the judicial power was faced with the problem of punishing drug traffickers and intended to intensify their punishment, they could not condemn them to death based on Ayatollah Khomeini’s fatwa, because Ayatollah Khomeini believed that the punishment mentioned in verse 33 of Surah Al-Ma’idah could only be applied to those who were waging war. However, Mr. Montazeri considered the title of “mufsid fil ardh” (corrupter on earth) to be independent of being a combatant, and interpreted those who were corrupters on earth as being subject to the punishment mentioned in that verse.

Ayatollah Musavi Ardabili, the head of the Supreme Court of the country, requested permission from Ayatollah Khomeini to refer to the fatwa of Ayatollah Montazeri in order to intensify the punishment for drug offenders. Mr. Khomeini granted permission to refer to the fatwa of Mr. Montazeri in response to this request. (7).

From then on, this theory became the basis for punishing drug offenders. According to this theory, circulars numbered 64/11-B-Sh dated 20/8/1364 were issued to the courts by the head of the Supreme Court of the country. And on 9/7/1366, the head of the Supreme Court of the country also issued circulars to the courts and revolutionary courts throughout the country regarding perpetrators of drug crimes. (8).

The Law of Amending the Law on Combating Drugs and Adding Provisions to it, approved by the 3rd of August 1367 by the Expediency Discernment Council, apparently follows such theories; as it considers drug traffickers as “corrupters on earth.” Article 9 of this law (regarding the drugs mentioned in Article 8: heroin, morphine, cocaine, methadone, and other chemical derivatives of morphine and cocaine, as well as the chemical extract of cannabis and cannabis oil) states: “… if the total amount of drugs reaches thirty grams in the fourth offense, the offender is considered a corrupter on earth and will be sentenced to death…”

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Criticism of executing drug criminals based on corruption on earth.

In the above critique, first we will discuss the majority-based argument (A) in the assumption of majority. Then, the above ruling will be examined based on the theory of minority (B). Finally, considering the reference to the punishment in the above ruling to the fatwa of Mr. Montazeri, we will examine his opinion and the process of changing his theory and returning to the theory of majority (C).

The basis of the majority of the jurists’ fatwa is:

Verse 33 of Surah Al-Ma’idah is about the punishment for those who are both enemies of God and His messenger and strive to spread corruption on earth. In this verse, we are not faced with two separate groups, one being “enemies” and the other being “corrupters”. Rather, the verse is referring to a single group: “those who are enemies and corrupters”. The title of “corrupter” is not an independent title, but rather it refers to those who are enemies and corrupters, or corrupters who are also enemies. This verse remains silent on the punishment for other corrupters. The majority of scholars follow this interpretation and therefore do not consider execution as the punishment for “mufsid fil ardh” (corrupter on earth). Ayatollah Khomeini, like the majority of scholars, did not consider execution as the punishment for “mufsid fil ardh”. (9).

For this reason, Mr. Mousavi Ardabili, on October 1st, 1987, obtained permission from Mr. Khomeini to act according to the fatwa of Mr. Montazeri regarding the execution of drug offenders. This decision was communicated to the courts in the form of circulars on November 11th of the same year. If this permission has not been revoked for any reason, it was valid for a maximum of seventeen months, until the death of the issuer of the permission, Ayatollah Khomeini, in June 1989.

According to Article 167 of the Constitution of the Islamic Republic of Iran, “The judge is obligated to make every effort to find the ruling for each case in the written laws, and if not found, to issue the ruling based on credible Islamic sources or fatwas…” In the case of drug offenders, due to a legal vacuum, according to the opinion of the country’s leader, reference was made to the fatwa of Mr. Montazeri. After the death of the leader in 1989, it is necessary to refer to the fatwa of the famous jurists or the new leader of the country. The famous fatwa considers the subject of a combatant and a corrupter as one, meaning that according to the famous fatwa, a corrupter who is not a combatant cannot be executed.

b) The basis of the fatwa of minority jurists:

Based on another group of scholars who consider “mufsid fi al-ardh” as a separate title and consider execution as permissible for them, it seems that drug traffickers can be executed. However, even this basis is not absolute. This means that not every “mufsid fi al-ardh” can be executed. According to the fatwa of Mr. Montazeri, there are multiple conditions for the realization of this title and for the permission of execution, some of which are as follows: (10).

First condition – corruption for the well-being of society and the dignity of Islam and Muslims.

In response to a question that was asked of them in the 1960s, they describe the criterion for corruption as follows: “Apparently, the criterion is any corruption that comes from an individual or individuals, or a power that affects the Islamic community or the public status of Islam and Muslims, and includes the commission of any sin – no matter how great it may be – it cannot be tolerated.”

Second condition – Intention of “corruption”.

According to the criteria and standards outlined in the law, smugglers are punished if they are caught with a certain amount of drugs. These are usually intermediaries, but the real culprits of smuggling gangs, who are the true corruptors, are never carriers of drugs. As a result, intermediaries are convicted even if it is not clear that they intended to cause corruption. According to Mr. Montazeri, “causation has no specific quality. What matters is the intention of the corruptor towards the cultural, political, or economic entities of the Islamic society, and the attribution of truth is based on custom. Despite the existence of a stronger cause, it is not clear if the corruptor is truthful or not, and limits should be applied to doubts: [meaning that despite doubt and suspicion, punishments should not be carried out].”

In another writing, Mr. Montazeri repeats the same condition: “Corruption, like any other sin that leads to punishment, falls under the category of intentional crimes and must be committed with intention, knowledge, and awareness; therefore, any activity that causes public corruption, if done without intention and without knowledge and attention, but rather for other motives, does not fall under the ruling of corruption.” (11).

Third condition – Criminals’ motivation.

Mr. Montazeri explains in this regard that “in cases where we know or suspect that a person’s actions are motivated by economic incentives or cultural poverty, and their decision does not aim to corrupt society or harm the dignity of the public and the Islamic community, their title as a corrupter is not clear and in case of doubt, execution is not permissible.”

Fourth condition – Fighting against the roots of corruption, not against the disabled.

He explains that “in order to deal with corruptions and unhealthy individuals and movements, whether political, economic, or cultural, we must search for the causes and roots as much as possible and fight against them. Fighting against the effects and consequences is less effective and has less positive impact than execution.”

Changing the fatwa of Ayatollah Montazeri.

Although initially, Mr. Montazeri believed that the title “mufsid fi al-ard” is an independent title that can lead to execution without the occurrence of “combat”, later his legal opinion changed and he joined the majority of jurists’ theory. Based on his latest theory, being a mufsid fi al-ard alone does not justify execution; unless it is accompanied by committing combat: “Sometimes even being a mufsid fi al-ard does not justify execution; and perhaps the condition for it is armed rebellion and the truthfulness of the title of combat…” (12).

According to the fatwa that became the basis for the execution of drug smugglers in the judiciary, namely Ayatollah Montazeri, ultimately returned from the minority theory to the majority theory, their execution sentence based on being a corruptor on earth is lacking in religious legitimacy.

Third Principle – Execution based on Retribution.

One of the fundamental principles of executing drug offenders is based on “retribution”. In the definition of retribution punishment, it is said that it is a punishment that is “without limits” and its amount depends on the opinion of the religious ruler. The term “without limits” in the famous rule of “retribution without limits” refers to a punishment that is “beyond limits” (13).

In some of Iran’s laws, including the amendment to the Anti-Narcotics Law, the punishment for these criminals has been mentioned as disciplinary measures: “The court may reduce the disciplinary punishments stipulated in this law by half if there are mitigating factors present…”. (14).

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Execution of drug traffickers based on retribution.

In the definition of punishment, it has been stated that the punishment that is “less than the limit” is not meant to be “beyond the limit”; rather, it means “below the limit” and “less than the limit”. Even if a defendant is sentenced to the punishment of “ta’ziri lashes”, the punishment should be less than the punishment of “haddi lashes”.

In Article 16 of the previous Islamic Penal Code, passed in 1996, when defining punishment, it was explicitly stated that “punishment is a form of discipline or retribution that is not specified in the Sharia and is left to the discretion of the judge, such as imprisonment, fines, and flogging, with the amount of flogging being less than the prescribed limit.”

In the new Islamic Penal Code adopted in 1392, although such a provision has been included in the definition of retribution, firstly in Article 19 of this law, when dividing retributions, it divides it into eight categories and the first category, which is the most severe, is “imprisonment for more than twenty-five years.” Therefore, there is no retributive execution punishment.

Secondly, in this article, when defining the punishment of grade six, it stipulates: “flogging from thirty-one to seventy-four lashes and up to ninety-nine lashes for crimes against chastity.” What is important is that the number of lashes prescribed in this clause is less than the number of lashes prescribed in the limit. Because in the limit punishment, the maximum number of lashes is seventy-five lashes; except for crimes against chastity, which is one hundred lashes. The legislator has also followed this logic that “disciplinary punishment” should be less than “limit punishment.” Therefore, drug offenders cannot be sentenced to death based on “disciplinary punishment”; because “disciplinary execution” punishment is logically impossible to be less than the limit punishment.

Fourth Principle – Government Regulations.

Some other supporters of the death penalty for drug offenders consider their execution to be justified based on “governmental punishments” and from the perspective of “Sultanic decrees”. Governmental punishment is a practical punishment that is not prescribed in religious law, but is considered permissible based on the original religious ruling. However, in certain circumstances, the government may prohibit it and impose a punishment on the perpetrators in order to prevent the commission of such acts and to preserve the well-being of society and public order.

In “general penalties”, the aim is to prevent an action that is considered forbidden and punishable in religious law, but in “governmental penalties”, that action may be permissible in religious law but is now prohibited due to causing harm to public safety and welfare. For example, according to the initial religious ruling, a seller can offer their goods at any price they desire, but in times of societal need for a certain good, and for the sake of public welfare and safety, the government can set a price for that good. Based on governmental penalties, the government can impose a suitable punishment for offenders.

One of the supporters of the death penalty for drug offenders, citing the above punishment, explains that: “In Islam, we have a form of retribution called governmental retribution, which is different from the commonly used term. Governmental retribution is a punishment determined by the ruler. In a narration, it is mentioned that they informed the Commander of the Faithful about a person who would dig up graves and violate the corpses; His Holiness informed the people and ordered them to kick him until he dies, and in the end, they burned his corpse.” (15).

Execution of drug traffickers based on government punishment.

Without a doubt, every government has the right to establish regulations for the sake of maintaining security and public interest, and to limit the freedoms of citizens for the sake of public security and societal well-being, and to impose punishments for those who violate these regulations. However, even in these cases, the government is not the absolute decision-maker, but must consider certain points, which will be mentioned below.

Firstly: The fundamental principle is the freedom of citizens. Any restrictions must be in line with the common good and to the extent necessary for the well-being of society. The death penalty for drug offenders is not a punishment that serves the exclusive interests of society. There are other alternative punishments available.

Secondly: The right to life is the most fundamental right of human beings. The government cannot deprive citizens of this fundamental and primary right by committing crimes.

Thirdly: The government’s efforts to prevent drug crimes through the implementation of the death penalty are unconventional; unless the government also deprives criminals and wrongdoers of their right to life in other crimes and social vices.

Fourthly: The current punishments for drug offenses are based on the quantity of drugs discovered. In this system of punishment, carriers and couriers are sentenced to death based on the amount of drugs found, not based on their intentions or their role in the production and distribution network of drugs. Meanwhile, the leaders of smuggling gangs are not subject to these punishments due to their lack of physical possession of drugs.

Fifthly: Government can resort to “governmental punishments” only when there are no “religious punishments” for the crimes. In the case of drug offenses, it can be considered as other disciplinary offenses such as “corruption”, “harming others”, “consuming forbidden property”, etc., which are subject to punishments less severe than execution.

Sixthly: Regarding government punishments, prevention of committing a religiously forbidden act is not the main criterion; rather, the main criterion is its deterrent aspect. The deterrent aspect of execution in drug crimes has not been proven by relevant experts. Additionally, these crimes are often committed in a gambling manner, where the criminal either wins and becomes wealthy or loses and with execution, everything ends for them; even though the negative and destructive consequences remain for their family and loved ones.

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Criminals of drug trafficking, as they have not used weapons against society, are not subject to the punishment of “combat”. The title of “corrupt on earth” is not an independent title on the basis of which the corrupt on earth can be subject to the prescribed punishment of execution in verse 33 of Surah Al-Ma’idah. Based on “retribution”, they cannot be sentenced to execution because retribution is a punishment that must be less severe. “Governmental retributions” also cannot deprive people of their right to life, especially since, according to experts, these executions have lost their deterrent aspect. Therefore, the punishment of execution for drug traffickers is without a legal basis, and since the laws of Iran are based on Sharia, these punishments are also not legitimate from a legal perspective.

Notes:

“Indeed, the punishment for those who wage war against Allah and His Messenger and strive to spread corruption in the land is that they be killed, or crucified, or have their hands and feet cut off from opposite sides, or be exiled from the land. This is a disgrace for them in this world, and in the Hereafter they will have a great punishment.” Surah Al-Ma’idah, verse 33.

2- R. K. Foundation, Jahangosha; Sinaei, Pourmand; Aghdami, Fatemeh, Legal and Jurisprudential Foundations of Execution in Drug Crimes: A Study of the Jurisprudential Ruling of Execution as a Solution for Combating Drugs, Website of the Ijtihad Network.

“The warrior is anyone who strips off his weapon or prepares it to intimidate people and wills to spread corruption on earth…” Khomeini, Sayyid Ruhollah, Tahrir al-Wasilah, vol. 2, Chapter 6, on the issue of the warrior, question 1.

“The strongest in terms of changing the ruler between execution, crucifixion, amputation, and exile, is to oppose and negate, and it is not far-fetched for him to consider the crime and choose what is suitable for it…” – Al-Waseela, Vol. 2, Chapter 6 on the punishment of a combatant, Issue 5.

“And when he turns away, he strives in the land to cause corruption therein and destroy crops and offspring. And Allah does not like corruption.” – Surah Al-Baqarah, verse 205.

“If you see that smugglers are being executed, this execution is not only permissible according to religious law, but in some cases it becomes necessary. Why? Because these individuals are true examples of corruptors on earth…” – R.K. Mirzaizadeh, Kazem, A Study of Jurisprudential Foundations in Drug Crimes, website V.

7- Ayatollah Seyyed Abdul Karim Musavi Ardabili’s Fatwa: “In the name of God. His Eminence Ayatollah Imam Khomeini – may his glory continue – has stated that the execution of a corrupt person who is considered a threat is permissible, according to Ayatollah Montazeri’s opinion, and this matter needs to be addressed in the judicial courts. If you permit, the judicial authorities may act according to his opinion. May your honorable life continue. 9/7/66 – Abdul Karim Musavi.” Ayatollah Khomeini’s response: “In the name of God. You are authorized to act according to his honorable opinion. 9/7/66, Ruhollah Al-Musavi Al-Khomeini.” Imam’s Sahifeh, vol. 20, p. 397.

8- The same, mentioned in the footnote of this inquiry..

9- Ayatollah Seyyed Mohammad Mousavi Bojnourdi, a member of the Supreme Judicial Council in the first decade of the revolution, reports that “Imam (Khomeini) never accepted the death penalty for corruptors on earth. His view was that the label of ‘corruptor on earth’ in itself is not enough to warrant execution… I personally asked him (Imam Khomeini) for a fatwa (religious ruling) for the Supreme Court judges, whether drug smugglers deserve execution or not? He replied, ‘If they carry weapons, cause mischief and corruption’.” This means that he (Imam Khomeini) did not accept the mere label of ‘corruptor on earth’ as an independent crime deserving of execution.” This statement was made during a conversation with Ayatollah Seyyed Mohammad Mousavi Bojnourdi, published on the website Jamaran on February 23, 2014.

10- Montazeri, Hossein Ali, Risaleh-ye Estefata’at, Vol. 1, Answer to Question 884.

11- Montazeri, Hossein Ali, Views, Vol. 1, p. 423.

12- Montazeri, Hossein-Ali, Views, Vol. 1, p. 460. This response is in response to Dr. Mohsen Kadivar’s response as follows: Is “corruption on earth” a separate legal limit from combat in terms of Sharia? If so, what are the conditions and legal evidence for this issue?

13- According to: A Review of the Legal Ruling of Execution as a Solution for Combating Drugs, from the website of the Network of Ijtihad.

Article 38 of the Law Amending the Law on Combating Drugs and Adding Provisions to it, approved on August 3, 1988, and ratified on November 17, 1997 by the Expediency Council.

15- Comments of Hojat al-Islam Javad Habibibar, head of the Committee on Jurisprudence and Family Law at the Center for Islamic Studies of the Islamic Consultative Assembly, at the debate session “The Legitimacy of Capital Punishment in the Present Era” at Navab School in Mashhad, on the website of the Ijtihad Network, April 24, 2015.