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Mohsen Kadiour

The dead have the same legal rights as the living. They have the right to not have their graves destroyed or desecrated. But is this right for everyone, or only for righteous believers? Is it permissible according to Sharia to destroy the graves of individuals who, in some way, are considered enemies of the Islamic Republic – whether Muslim or non-Muslim? Is the traditional concept of “guardianship over graves” recognized as part of the “absolute guardianship of the jurist,” in a way that allows for the shedding of the blood of critics and desecration of their graves if it serves the interests of the regime? Or are these actions (at least towards Muslim dead) also against Sharia according to traditional jurisprudence? What is the necessity of “ijtihad in principles and fundamentals” in the realm of “the rights of the dead”? This discussion* in response to the above questions includes three parts as follows: The rights of the dead in traditional jurisprudence, the 

Rights of the deceased in traditional jurisprudence

It is obligatory to bury every dead person in a sufficient manner, so that the living do not suffer from the consequences of an unburied corpse (such as disease and foul smell), and the corpse does not become prey for scavenging animals. The deceased’s religion, beliefs, and behavior should not prevent them from being buried. In other words, burying the dead is a human right, not necessarily a right reserved for Muslim humans. There are two ways in which a dead person can be buried: one is to bury them according to religious customs, and the other is to throw them into a pit. In other words, one is done with respect for the deceased, and the other is done without it. In traditional jurisprudence, the first applies to a Muslim deceased, and the second applies to a non-Muslim deceased. I will briefly review the rights of the deceased in traditional jurisprudence in two sections: Muslim deceased and non-Muslim deceased.

Rights of Muslim Men:

The sanctity of a deceased Muslim is the same as when they were alive. A Muslim who has passed away must be washed and shrouded according to religious customs, prayed over, and respectfully buried in a grave that complies with religious guidelines. It is not permissible to bury a Muslim’s body in places that would disrespect their sanctity, such as garbage dumps or waterways. It is recommended to place a marker on the grave and write the deceased’s name on the gravestone. Muslim cemeteries should be separate from non-Muslim cemeteries, and it is not permissible to bury a Muslim in a non-Muslim grave or vice versa. It is not permissible to bury a deceased person in a grave that already contains another deceased person before the first has decomposed and turned to dust.

Among the disliked actions of burial, these are counted: burying two dead in one grave; rebuilding a grave after it has been leveled (except for the graves of the righteous); sitting on a grave or leaning on it; walking on a grave without necessity; laughing on a grave; urinating or defecating on a grave; making a grave impure or dirty in a way that would be considered disrespectful to the deceased. Digging up a Muslim grave is forbidden unless it is known that the body has decomposed and turned to dust. Digging up the grave of a righteous person, even after the body has decayed – even if a long time has passed – is not permissible, unless it has been designated as a place of visitation. Ultimately, any action that is considered disrespectful to the deceased is forbidden. Digging up the grave of a person who has been buried in an inappropriate place that would cause disrespect to them, or for a necessary reason (based on the preference of

b) Status of non-Muslim deceased:

How is the burial and grave of a non-Muslim in traditional jurisprudence? This question has not been explicitly answered. However, from the limitations of the discussion of a Muslim funeral, the following points can be reached. I reminded the necessity of burying a non-Muslim. If the deceased belongs to one of the other religions, both the followers of that religion can bury the dead according to their own rituals. But if his/her religion is not present at the time of his/her death, it is not necessary for Muslims to confirm and bury him/her according to his/her religion. Therefore, such a dead person does not have the ritual of washing, shrouding, prayer, funeral procession, and burial according to Islamic standards. Such a dead person cannot be buried in a Muslim cemetery and must be buried in a separate cemetery. It is not necessary to put a sign on his/her grave or write his/her name on it. Such a dead person is not obligatory to be respected, unless it

Islamic Republic and Violation of Muslim Rights

A non-righteous Muslim or a hypocrite believer is still considered among the Muslims and their death is respected. It is not permissible according to Islamic law to disrespect their funeral or grave. Therefore, the following actions are against Islamic principles, even in traditional jurisprudence:

The burial of Mr. Kazem Shariatmadari, the rival of the leader of the Islamic Republic, took place near the Abouhossain Qom river in April 1986. It was undoubtedly a violation of his sanctity and a heinous act according to religious laws. The bodies of executed prisoners from the Mujahedin-e Khalq and other armed Muslim groups must be treated with respect. After their death, they are entitled to all the rights of Muslims. Their graves must be independent and marked, and desecrating their graves is not permissible. Destroying the graves of writers and political activists who have passed away, even if they were not involved in religious rituals, is a despicable act and defacing their graves is not allowed.

The destruction of Reza Shah Pahlavi’s grave in Ardabil’s Paradise in 1359 by Sadegh Khalkhali and the desecration of his grave is not permissible according to Sharia law. Any criticism of Reza Shah’s actions does not provide any justification for his departure from Islam; rather, there are multiple evidences that he died as a Muslim. If the mummified body belongs to him – which seems to be the case – its burial was in accordance with religious customs and his right. He has the right to have his grave marked and the desecration of his grave is not permissible.

The Islamic Republic has not even been bound by religious etiquette when it comes to its opponents and critics, and has disregarded the principles of Islamic law. The rulers of the Islamic Republic consider anyone who opposes them as “infidels” in contrast to religious beliefs, and have deprived the opponents of the system of their rights even after death. However, assuming that these individuals have committed major sins in practice, they are ultimately considered as sinful believers, not infidels, and being a sinful Muslim does not deprive one of their rights after death.

Destroying the graves of infidels (Babis, Bahais, and Communists) is not considered a violation of the sanctity of the dead in traditional jurisprudence, because in this view, the sanctity of the dead only applies to Muslim dead! With a little tolerance, the dead of the People of the Book are also not without sanctity. Executed prisoners from Marxist groups in the 1960s fall into this category. In other words, from the perspective of the Islamic Republic, these individuals have no sanctity until after they are violated after death!

The rights of men from the perspective of diligence in foundations and principles.

What has passed is the report of the opinions of jurisprudence in branches. However, from the perspective of jurisprudence in principles and fundamentals, every human being, as a human being, is entitled to basic human rights in life and after death. This includes the right to be buried with respect. If a non-Muslim deceased does not have anyone to take responsibility for their burial according to their own religion, their body cannot be thrown into a pit like an animal and covered with dirt. If their religion is known, they must be respectfully buried according to their own religion, and if their religion is not known, they must be buried according to Islamic tradition if possible. The expenses for burial for both groups can be covered through zakat.

Every person – regardless of their religion, faith, or background – has the right to have an “independent grave” with a name and a sign, and to be buried or cremated with respect for their human dignity according to their own beliefs. Burial of the deceased – whoever they may be – in a communal grave is against the law. Relatives and loved ones of the deceased have the right to know the location of their loved one’s grave, to be present at their burial, and to pay their respects. Desecration of graves is absolutely unacceptable, whether the owner of the grave is a righteous believer, a sinful Muslim, a person of the book, a follower of the Baha’i or Babism faith, an atheist, or a Marxist and so on. Even if the owner of the grave is considered to have committed a major sin from our perspective, we are not allowed to destroy their grave or turn it into a garbage dump or a sewage pit. Digging up the

If someone disagrees with someone’s thoughts or actions, they can deeply criticize them; but it is not permissible to dig up their corpse, mutilate it, burn it, show disrespect to it, destroy their opposing grave, or disrespect their grave. All the rights that have been considered for a deceased Muslim in traditional jurisprudence belong to all the dead. Just as the sanctity of backbiting, slander, lies, and defamation is not specific to believers and committing them against any person is forbidden, disrespecting the grave of any deceased person, even if they are non-Muslim, wicked, and against the law, is a violation of their sanctity.

Notes:

This note has been written at the request of the peace line journal.

1- The traditional jurisprudential viewpoint is based on the following sources:

Tabatabai Yazdi, Sayyed Mohammad Kazem, Al-Urwat al-Wuthqa, Kitab al-Tahara, Chapter on Burial, with several comments from jurists, Islamic Publishing House affiliated with the Society of Teachers: Qom, 1417 AH, vol. 2, pp. 113-142.

Mousavi Khoie, Sayyed Abolqasem, Manhaj al-Salehin, City of Knowledge: Qom, 1410 AH, vol. 1, pp. 87-91.

Mousavi Khomeini, Sayyid Ruhollah, Tahrir al-Wasilah, Adab Printing Press: Najaf, 1390 AH, vol. 1, pp. 87-97.

Ghurwi Tabrizi, Mirza Ali, Al-Tanqih fi Sharh al-Urwat al-Wuthqa, Taqreer Abhath Sayyid Abu al-Qasim Musavi Khu’i, Dar al-‘Ilm Institution: Qom, 1409 AH, vol. 9, pp. 159-265.

2- For further reading, refer to: Kadiour, Mohsen, Ijtihad in Foundations and Principles: Reforming Islamic Thought through Structural Ijtihad Method.

Mohsen Kadiour’s website

August 2nd, 2016