Mevc KiIIing in IsIan MovaI and LegaI Issues

AulIov|s) Saed SiIandev SIaI

Bevieved vovI|s)
Souvce AvaI Lav QuavlevI, VoI. 11, No. 2 |1996), pp. 105-115
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MERCY KILLING IN ISLAM: MORAL AND LEGAL
I S S UE S
Sayed Sikander Shah (Haneef)
INTRODUCTION
Modem scientific advancements in ehe fleld of medicine have changed che
tradiiional situation where an ill person would be declared clinically dead.
Undoubtedly, Islam strongly conriemns the ending of a human life on the grounds
of mercy and human sympathy. The issue which concemsus here, however, is how
does Islam view the stopping of a drug or life-support system when a person who,
because of brain (lamage, is totally paralysed and shows no sign of life except that
his heart is beating or his breathing is sustained by life-saving apparatus. To the
best of my knowledge, to date, there is no juristic verdict (Al-Fatwa) on the point.
I consider at, aldough it is not viewed as a permissible (Al-Mubah) act, the
medical doctor can escape worldly punishment (Al-Ucqubah), if he acts with the
express consent of the patient's legal guardian (legal heirs in dis case). I intend
that this article should encourage Muslim scholars to come up with a more
conclusive legal opinion on this issue.
Mercy killing (Qatl Al-Marhama#), according to its dictionary meaning, refers
to the killing of a person who suffers from irrecoverable illness or when his
sickness is terribly painfiul.l Broadly speaking, it covers all folnls of killing, of an
elderly person, a terribly disfigured baby, and a person in a permanent coma.
Historically, this form of aggression on human life has its prececient even among
some priiive tribes, where elderly people who were no longer socially or
economically useful were made to climb a tree and hold tightly to its branches.
Then some strong man would shake e tree vigorously; if e person was able to
hold on, dey were allowed to live, otherwise they were put to death. On other
occasions someone niight be taken to a desert and left to desiny.2 However, wich
1 The word mercy killing or Qatl Al-Marah is synonymous wid t:he English terminology
"euthanasia". It is a compound word; Qatl mesuns kilig and Marhamah is derived fFom the word
ra4 and rZhms wbidh means to have mercy upon someone have compassion, and be merciXl. See
Mohammed Ibn Mukrim Ibn Maniir, Lisan Al-/rab, V.12, Dar-Sadir, 1982, p. 230; Miltn J. Cowan,
A Dictonary of Modern Written Arabic, Beirut, 1974, p. 331; see also Abdul-Wab HEwmad, Dirasat
Mu'anrnaqah Fil-Fiqh Al-gina'i Al-Muqaran', Matbu'at Jami'at->Kuwait, 1983, pp. 301-308.
2 This was not only practised by ie ancient tribes but esren some philosophers like Plato and Bacon
supported the nodon that all due consideration should be given to e healthy secdon of soaety, but the
aflflicted strata, especially if their ailment proves to be incurable, should be allowed to comfortably die.
See .HAwmad suprs, n. 1, p. 314.
105
106
ARAB LAW
QUARTERLY
the
establishment of welfare homes and chantable bodies these practices became
outmoded.
Advzcements in the field of medical science though, and the occurrence of new
illnesses mean that it is not only where the elderly are concemed where such
problems can occur, but they can also concem the very young, such as terribly ill
or disfigured infants in utero, or those whose heart beat is sustained by life-saving
apparatus, or those sufferiIlg from AIDS or cancer. To further complicate the
issue great concem has been expressed irl instances where simple illness might be
declared
irrecoverable by those interested ill the dissection of vital organs for
transplalltation, who feel they can evade any legal consequences by clsiming a
mercy killing.3
This form of attack on human life has already been
decriminalised4 in some
secularist societies, alld its legalisation has become the subject of debate in others.
It is usually carried out either by close relatives against their most loved and dear
ones5 or by doctors,6 and they go unpunished by claiming that it was not male fide,
i.e. the motive was good.
To address the issue from an Islamic perspeciive involves serious moral and
legal questions, such as what is the Islamic view of mankind, how does Islam view
such issues of compassion and sympathy, its view on diseases even if they are
incurable, and the ultate quesiion, what is its legal standpoint on the issue?
These issues mnll now be addressed.
THE ISLAMIC VIEW OF A HUMAN BEING
Islam regards human beings with the greatest of respect, and Allah (s.w.t.) has
made a human being to be the noblest among his creatures,7 and has created him
with the object of carrying out His viceregency on earth.8 Thus He has declared his
life to be absolutely inviolable. It is of no matter if that life is of an aged, or ailing,
or completely abnormal human being. This is very clearly expressed in the
Qur'anic verse: "It is not lawful to take away a human life except with due process
of law,"9 and the Prophet's (p.b.u.h.), hadith where he is reported to have declared:
3 hwmad, p. 319.
4 What I marl by
decrimir.nlisaton is that in many instances individuals, especially the spouse,
commit this against their partner merdy because they are partially paralysed or are suffering from some
other severe disease such as cancer. When he is charged, he simply contends, "I did it out of sympathy",
andisacquitted.
Seeforcascs,Hawmad, supra, n. l,pp.305 313.
5 For instance, in 1949 a female student by the name of Paigat Carol Ann Elled his father who was
suffering from cancer and vvas acquitted. See H. awmad, supra, n. 1, p. 306.
6 For instance, Dr Mair an Fnglish medical doctor in 1975 said, " a lot of medical practitioners are
resorting to euthanasia surreptitiously but now we taLsc about it loudly", see .Hiwmad, supra, n. 1, p.
313.
7 Al-Qur'an, 17:70.
8 Al-Qur'an, 2:30; 38:26.
107
M E R C Y K I L L I N G I N I S L A M
"It is
lmlawful
(haram) to
violate the
sancuty of
anoier's life that Allah
ts.w.t.)
has
declared it to be
inviolable''.l
Commeniing on the
above
Qur'anic
provision, the
leading
authorities hold that
no
human life can be
destroyed
except as
provided by tShe
ShanXa. It is
agreed that
based on the
authorities from the
Qur'anic
provisions and the
Prophetic
traditions
there are five
irlstances
where a
person's life can be
rightfdlly
endecl;
namely, for
promiscuity
(Al-Zina),
Apostasy
(Riddah),
Hirrabah
(Highway
Robbery),
inten-
tional
killing of a
human
being
(culpable
homicide) and
rebellion
(Al-Baghz).ll
Thus, to kill an ill
person on the
grolmds of
mercy or
sympathy is not
among the
list of
instances
where it can be
considered a
lawfbl ao, dchus it must be
considered
unlawful ab initio
(Haram).
Moreover,
Islam views the act of
helping an ill
person to die not as a
sympatheiic
act but as an act
which
smounts to an act of utter
cruelty.
Similarly,
Islam's view
on
illness and
misfortune rests Ox1
disiincKy
different
premises.
THE
IStAMIC
VIEW ON
AILMENTS
AND ITS
CONCEPT OF
SYMPATHY
If the
seciar
mind finds it
absurd to
maintain and
preserve the life of a
suffering
person and its
notion of
morality
dictates that such
person
should
comfortably be
put to
deai
mstead of
bemg left to
linger on in
agony and pain,
Islamic faii and
morality,
which
measures
every
hwnan
affair with the
yardsiick of right and
wrong, as
dictated by
divine
sanction, sets out
different
guidelines on the
issue.
First,
according to the
Islamic
world riew,
illnesses and
infirmities in life are facts
of life that must be met with
patience, and such
adversities, or
misfortune of any
type,
ought to be
regarded as
challenges to be faced with
fortitude.
Therefore, such an
afflicted
person is
directed to
regard his
sufferings as a test
from
Allah
(s.w.t.) and
should
exercise
patience
(Al-Sabr). This is very
clearly
stated in the
Qur'an
where
Allah
(s.w.t.)
states that He tests the
believers with
calamines,l2 and yet in
anoffier place He
dedares
paiience in che face of
adversities
as a real act of
righteousness.l3
Moreover, the
Qur'an in order to
encourage a
figheng spirit in
believers who are
faced with
adversity
narrates the story of
Prophet Job
(Ayyub)
(p.b.u.h.), who was
9
Al-Qur'an,
178:33; 6:151.
10
Muslim Abu
Al-Husain
Muslim Ibn Al- .jjaj,
Al-3tatnf
Al-Sahih
Al-Muslim, V.5, Beirut, Dfir al- Ifiq
Al-Jadid^, 1985, pp.
107-108;
Mohammed Ibn Isma'il
al-Bukhari, .9. i
Al-Bukhfiri, Y.8, Beirut,
Dr
Al-Fir, 1981, p. 148.
11 The
offence of armed
robbery,
rebellion and
intentional
homicide are
puriishabIe with death by virtue of both the
Qur'anic text and the hadith, mrhile the =e of
adultery and
apostasy are
putiished on the
authority from the
Sunnah: see
Al-Qur'an, 5:36; 49:9; 2:178; and for the ,hadith see .. *h
Al-Bukhfiri, supra, n. 10, V.4, p. 36. See also
Mohammed, Ibn
Ahmed
S-Qurtubi,
Al-amG
Li-ahkiim
Al-Qur'an, V.7, Cairo, Dar
Al-Kadb
Al-U'rb^, 1967, p. 133, Syed
Mahmiid
Al-Aliisi, Ruh
Al-Masani, V.8 Beirut I.hya
Al-Turath
Al-Arabi, 1985) pp. 5s55.
12
Al-Qur'an, 2:153.
I3
Al-QlIr'an, 2:176.
108 ARAB LAW QUARTERLY
afflicted wii the most devastating skin disease, and other misfortune, iIl terms of
the loss of property and his most dear and near member of his family, but he was
sfll grateful to his Lord where Allah (s.w.t.), described him as, "How excellent in
our service he was'',l4 and "a veritable picture of patience for commemoraiion, for
all who have llnslelstasl(ling".l5
Among the scholars, Ibn Kathir says that according to an authentic hadith,
Prophet Job (Ayyub) was suffering from a chronic skin ailment for 18 years, and
his ailmerlt was so horrible that all deserted him except his fait and obedient
wife. At times she used to work as a labourer and feed her husband, and at stages
she was refused employment on account of her being the spouse of Ayyiib
(p.b.u.h.) and was made to sell his Pigtail (dafiah) on two occasions to provide a
loaf of bread for her ailing husband.l6
This narrative of the Qur'sn cons a lot of wisdom for the serious mind, from
among which two aspects are relevant for our discussion on naercy and sympathy
as envisioned by Islam:
(1) Man has to exercise utmost patience in the face of adversities in life, no
matter how horrible iey may be;
(2) The Islamic notion of mercy demands that services be rendered to a long-
suffering, ill person.
Secondly, the Snnsh of the Prophet (p.b.u.h.) declares that illness and
rulamities are blessillgs in disguise. This is evident from his consolement of a
patient: "Have no fear, the ailment will prove purifying you from sin if Allah wills
it so".l7 This hadith in itself not only enhances one's belief and confidence for his
salvation in the hereafter, it also has a great psychological effect in relieving the
pam suffered by the ill person.
Thirdly, the Islsmic religion not only makes it incumbent upon the person who
is related to the patient to take care of him, but it strongly urges believers at large
to pay service and spiritually support him by visiting him, and this is what mercy
means in ffie Islamic world view.
For instance, to render service to one's parents is made next to serving Allah
(s.w.t.). This is by virtue of the Qur'anic verse (Al-Isra: 2>24) and many
traditions from the Prophet (p.b.u.h.).l8
Again the Qur'an makes if obligatory to extend an helping hand and to fairly
14 Al-Qur'an, 38:4144.
15 Al_Qur'sn) 21 :83-84.
16 I'mad Al-Din Isma'il Ibn Kadir, Qisas al-Anbiya, ed., Al-Syed Hamili, Cairo, Al-Malctab A1-
Thaqafi, 1989, pp. 25S262; see also Al-Qbi, supra, n. 11, V.ll, pp. 323-327 and V.15, pp. 20S
216.
17 Yaha Ibn Sharaf Imam Al-Nawawi, Riad Al-Siilihin, eds. Abd. Aziz Ribah and Ahmed Yusuf al-
Daqaq, Riad, abah Ak-Dar Al-Islam, 1991, p. 302.
18 See for de .haCth in rcspect of one's dutg to his parents, Mohammed Ibn Yazid Ibn Majah, S2zan
Ibn MajaJz, V.2, ed., Mohnmmed Fu'ad Abdul Baqi, Beirut, al-Malrtabah Al-I'lmiyyah, n.d., pp. 1206
1209.
109
MERCY
KILLING IN I
SLAM
treat
other
blood
relations, the
neighbours, and
humanity at
large,l9 even if such
assistance
affects one's
economy and
financial
standing.
For
instance, the
Qur'an
obliges a
wealthy
person to
financially assist the
needy
and the
poor.20 This is
undertaken in the form of
paying the
obligatory
poor-due
(Al-Zakat), tithe
(Al-Ushr), and other
forms of
benevolent acts of
charity (Al-
Sadaqat). The
Sllnnah also,
amongst
many other
things,
declares it a
sinner who
holds back the
sustenance of ie one's
whose
living
depend on
him.2l
Finally, an ill
person is
recommended to seek
medical
treatment
through
lawful
means, and
never to
resort to
medications
which
facilitate
death. For
instance, the
Prophet
(p.b.u.h.) is
reported to have said:
"Allah
(s.w.t.)
descends
diseases and
for each
ailment He
facilitates cure,
therefore you
should seek
treatment",22 and
according to
another
report, "but
never seek a cure from a
malignant and
hariul
substance like
poison".23
Al-Shawkani,
commenting on the word
Khabith as used in this
hadith and
whose
translation is
noxious and
malignant,
holds that this
implies that any kind of
injurious
substance
should be
regarded as
Khabith and must not be
prescribed as
medicine to heal the
ailment.24
In a
nutshell,
Islnrn
never
approves the
ending of
someone's life just on
account
of him
becog ill,
handicapped,
mentally
retarded, or
paralysed.
Instead, it
strongly
urges the
afflicted
person to
exercise
patience, and
strongly
exhorts his
relatives and the
community at large to help
relieve his
sufferings.
What
follows
derefore is that
Islamic law
never
condones such a
killing and
regards it as a
cre. This
brings us on to the
Islamic
standpoint on the
issue.
CRIMINAL
LIABILITY
Islam not only
declares
human life to be
absolutely
sanctified, but it also
provides
incentive for its
protection, and
safeguards it by
comparing the
saving of one
person's life to
saving the
whole
human race in
terms of the
greatness of its
reward.25
Thus, to
violate it is a
serious
crutne and to
preserve it is the best form of
righteous
conduct in the eyes of the
Sharz'a.
Therefore, to kill
someone
deliberately by act or
omission
because he is
suffering
from an
unbearable
pain*ll
illness or
injury, or
because he is too old and has lost all
usefulrless and
prays for
deai, or his
illIless is
declared
incurable,
smounts to
19
Al-Qur'fin, 4:36. There are also hadith on the point, see
al-Nawawi, supra, n. 17, pp.
125-144.
20
Al-Qur'an, 51:19.
21 This iS
narrated by Ibn
A'mru, see
Al-Nawawi, supra, n. 17, p. 128.
22 It is
narrated by Abi Dardi, and is
authentic, see
Mobmmed Ibn Ali
Al-Shawkini, Nail
Al-AwEir- Sharh
Muntav
Al-AkhZar, V.9, Riisat
Oedarat
Al-Rishuth
Al-'Ilmiyah
Wal-Ifta, Saudi
Arabia, n.d., p. 93.
23 It is
narrated by Abi
Hurairah, see ibid.
24 Ibid.
25
AS-Qur'an.
110 ARAB LAW QUARTERLY
culpable homicide and is plJnishable by Qisas26 unless pardoned by the next of kin
of the victim. If such killing occurs unintentionally, he has to pay compensation
(Al-Diyah)27 to the relatives of the deceased. Additionally, he would be deprived of
any benefit from inheritance, or testamentary disposition if any was made in his
favour by the victim.28 He is also required to perform Al-Kaffarah29 (expiation)
for the sin that he has committed.
Nevertheless, an accused indicted for this offence which is usually committed
intentionally but with the motive of alleged genuine sympathy, among other
things, may put up the following defences: good motive; consent; and duress.
Good motive
It is a basic characteristic of the doctrine of crirninal accountability in Islam that
the motive (Al-Ba'itu) or (dafi') which implies or instigates a person to intend the
commission of a wrongfill act is irrelevant. As Abdul Qader Awdag says to the
effect:
The Shari'ah from the outset has drawn a clear distinciion between intenrling to commit a
wrong and the moiive which impels the criminsl to do such wrong. Thus it does not attach
any significance to motive in deterrnining the guilt of the accused or its ensuing penalty. It is
immaterial whether a killing is committed by a noble motive such as for vengeance and
protection of one's dignity or it is committed with a base motive of killirlg for the sake of
steaig.30
One may argue that in the Qur'an we read about the killing of a youth by Khidr,
who killed him with the intention of preventing his rebellion against his parents. If
it is the case then why is the motive not taken mto account in removing the liability
of the accused from this crime?31
26 Qisas is the original pllnishment for deliberate homicide and it can be compounded or remitted for
diyah. Its authonty is by ve of the Qur'anic Ayah, 2:178.
27 DiyAh designates the amount of compensation given to the heirs of the victim for wilhl killing if
forgiven, and as original penalty for killing by mistake or negligence. The authority for this is by virtue
of the Qur'anic verse (Al-Nisa: 92). As to its amount, according to the most accepted view, if it is a
wilfill killing, it is 100 camelsX 40 of which are pregnant, or its equivalent price in money, or according to
the juridical opinion of scholars in Egypt the equal price of 1,000 dinar which is equivalent to 4,250
grams of gold plus one third of the sarne. But in the case of unintentional killing it is only 100 camels or
1,000 dins-. This is by e of the .hadith on the point and the opinion of Muslim scholars. See for the
hadith, SiiJa Ibn Al-Ash'ath Abi Dfiiid, Sunan Ah' Dail, V.3, Darul-pikr, n.d., p. 189; and for the
weight of dinar, Wizarat-e-Awqfif e Misr, Al-Fatawa Al-Islaniyyah, 1985, p. 3394; and for the opinion
of Muslim jurists, Abdullfih Ibn Ahmad Ibn Qlgtlarnsh Al-muwaffiq, Al-Mughni, V.12, Niro n.d., pp.
919.
28 This is by e of .hadith, see, Mohnmmed Ibn Yazid Ibn Majah, Sunan Ibn Majah, V.2, supra, n.
18, n.d., pp. 383 84; see also A'la'uddin Ibn Masu'ud Al-Kasini, BadA'tY al-Sana'i Fi Tarrib Al-Shfira's7,
V.10, Cairo, Matba'ah A1 Imam, n.d., p. 4858.
29 Al-K^ffarah according to the preferred new by the junst constitutes performance of ie ntual act
of fasiing for two months successively, see for details, A'li Ibn Mohaned Al-Miwardi, Al-Sun al-
Kubra ed. Mahmfid Masterji, V.16, Beirut, Dar Al-Fikr, 1994, pp. 316-319.
30 Abdul-Qadir A'wdah, Al- Tashir' Al-gina' Al-Islami, V. 1, Beirut, Dar Al-Katib Al-Arabi, n.d., p.
411.
31 Al-Qur'ax., 18:6982.
MERCY KILLING IN ISLAM
lll
This will not hold good because the incident in question belonged to a category
of mysterious conduct which was specially gifted by Allah (s.w.t.) to Khidr. It is
held that it was nothing but a special implementation of Allah's command, because
the verse 65 of Al-Kahf states that KBidr was given a special kind of knowledge
from God.32
Therefore, the defence of good motive does not absolve the culprit from criminal
liability on the issue.
Consent of the victim or his guardian
Here the culprit, if he is a relative, contends that the deceased either orally or in
writing authorised him that in the event of his becoming too old or irrecoverably
ill, to assist his death in a peacefill manner and by the least painfill means, or, in the
case of a medical doctor, he may contend that he has stopped providing medical
services to his patient when it becomes clearly apparent that he cannot be cured,
where such has been done with the express consent from the relatives or by virtue
of the will (Wasfyyah) of the deceased himself.
Mercy killing in the aforesaid situations involves two distinct issues:
(1) It occurs when a person in charge of caring for an ill or elderly person puts
such life to death or refuses to attend the person longer;
(2) It occurs when a medical officer stops the alministration of drugs or of some
injection to a person whose illuess in all probability is irlcurabIe.
In the first case, it is generally held that consent of the deceased does not
exculpate the offender from the liability, since human life is of the nature of a thmg
upon which man has no alienable right.33 That is why suicide is a grave sinful act
and prohibited in Islam,34 therefore if someone is prohibited from ending his own
life at his own instance, his consent to allow another to do the same is null and
void.35
However, there is some discussion among Muslim jurists on the issue when chey
address the right of pardon by the relatives of the victim in advance.
In the case of consent by the victim the fuqaha (jurists) advance the following
views.
Al-Sarakhsi, representing the Hanafi view, holds, "pardon by ie vicrtim after
receiving the injuries from ie ensuing result is void on the principle of juridical
32 Ahmed Muwafi, Min Al-Fiqh al-gina'i Al-Mugaran Bain Al-Shari'ah Wal-Qanz, Cairo, A.M.
Al-A'la Lil-Shu'un Al-Islami, 1965, pp. 22>223.
33 In de Qur'an there are several verses which clearly state that man has no proprietary right over his
own life, see Al-Qur'an, 2:258; 3:156; 23:81; 57:2.
34 Suicide is explicitly prohibited by tbe Al-Qur'an, Al-Niea (4):29.
35 A similar lriew has been expressed by Abu Zahrah and Jalaluddin Amri, see Mohammed Ahmed
Abu Zahrah, Al-anmah, Dar al-Fikr Al-Arabi, 1973, p. 536; Jallfi-luddin Amri, "Suicide or
temiination of life", translated by S.A.H. Rizeri, in Islamic and Comparative Law Quarterly, V.7, 1987,
p. 142.
112 ARAB LAT QUARTERLY
deduciion (Al-Qios).36 The reason is that it is the rigl:lt of the heirs to pardon or
demand Qisas afeer the vicum's deai. Therefore, the viciim's pardon ill advance
has the force of nullificaiion of a right which has not become due and thus void.
However, on the principle of junstic preference (Al-Istiksan)37 it is valid because
the legal heirs are entocled to pardon by way of sllccession from che vi.38
What iis statement means is that Hies view tixe pardon by the vici before
his dead as consent (Al-IdXm), which in turn is a 4agaiing ground for dropping
Qisas. It is furier contenrlesl that sud consent is a sufficient grollnd to consiinlte
doubt which is the remover of Qxwas plxnishment as a principle in criminkal law. As
to wheier diyah is due or not, however, Haes are divided.
Al-Dassuqi, representing the Maliki stand, says, "if a person before diconon of
a deadly blow says to another, I exonerate you from liability if you kill me, it has no
validity, since he has exempted ie accused before such right is due to him".39 But
according to a famous opinion of the school dWyah would be due.40
Al-Sharbini of the Shafi'e school holds, "on this issue there are two opzions
within our school; the blood of the vi is hadar (with no recompense) because it
is his right and he pardoned it. Qisas is dropped because of doubt created by oche
victim's consent but diyah is due".41
Al-Bahuti of t}le Hanbali school says, C'if arl injured person pardons his assailant
from the consequent death resulting from dat injury, the offender is not under any
liability whatsoever, because the vi has rightfully forgiven him aSer its
effectilre cause was present at his body".42
From the above statements by representative jurists from che four Sunni
schools, it is clear at some, like the Mais and Hanafies (analogically), uphold
the view that man has no alienable right over his life, t}us his pardon made m
advance (Al-Afw ma tagaddam) does not exonerate the culprit from liability.
Others like Hanabilah and some Shafi'es hold the contrary view, while the
majonty take a middle-course approach on the golden rule, that when dere is
difficulty in applymg the Sharha ruling on a point involving Qisas cases, the doubt
would emerge and the oripal penalty is dropped and an altemaiive penalty
becomes due.
It must be remembered though that we made a reference to the opinion by
36 Al-Qias is the applicsiion of a Sharifa ruling on a new problem because the latter has the same
eSective cause as the former. Sce Mahammed A.hsed Abu 7>hr76, Usul Al-Fiqh, Dar Al-Fikr A1-
Arabi, n.d., p. 227.
37 Al-Isthsan is a jstic prefercnce in departalre Som a Sharha ruling to another ruling because the
latter is stronger m jus6ficaiion. See id., p. 262.
38 Abu Bakz Mohmed Ibn Abi Ashal Al-Sarakhsi, Al-Mabd4, V.26, Beirut, Dar Al-ma'ripah,
1986, p. 153.
39 Shams Al-Din MAnmnaed A'rafEh Al-Dassiqiv .Sshiyah Al-Dassi iA' Sharh Al-Kabir, V.4, Dar
Al-Ihya Al-Kutub Al-Arabi, n.d., p. 240.
40 AwdS, op. at., V.2, p. 84.
41 Mohammed Al-Khai.ib Al-Sharb, Al-Mughni Al-Muhtaj, V.4, Dar Al-Fikr, n.d., p. 50; see also
Ya.hya Ibn Sharaf Imam Al-Nawawi, MinhAj Al-T.alibin Wa 'Umdzih Al-Masftin, Dar Ihya al-Kutub
Al-Arabiyyah, n.d., p. 114; Mohammh Ibn Idns Iniam Al-Shifi'i, Al-Unpn, V.6, n.p., n.d., pp. 77-78.
42 Min Ibn Yiinus Al-B;ihAi, Kashshaf Al-!2ina' A'lA Matn Al-Iqra', V.5, Dar Al-Fikz, 1982, p.
546; see silso, Ibn QX#1amsh, op. cit., V.12, pp. 589 90.
113
MERCY
RILLING
IN
ISLAM
Musl
jurists on
the
issue,
and it is
essential to
note
that
the
issue at
hand is
inherently
distinct to
the
situation as
addressed by
the
great
jurists.
They
were
addressing a
situadon
where a
victim
after
receisting
the
injury
due to
certain
considerations
such
as,
perhaps,
the
offender
happens to be a
blood
relaiive,
forgives
him, or
maybe
because he
happens to be
the
only
bread
er
for
xche
family. In
this
situaton, to
save
him
from
the
death
penalty is of
great
importatlce
for
the
welfare of
the
surviving
members of de
bereaved
family.
But
here we
are
dealing
with an
issue
where
there is a
serious
clash
between
the
most
fMdamental
principle of
Islam,
the
right to
life,
which is
among
dle
most
basic of the
objectives
of
de
Shan'a to
preserve,
the
duly of the
relaiives
and
the
medical
profession, to
extend it
and
improve its
quality,
and
the
fact
chat
Allah
(s.w.t.) is
ie
master of
man's
life.
It is
also to
be
noted
that m
Islam
man's
right to
life
cannot be
claimed
negatively, i.e.
the
right to
die.
This is
very
clear
from e
prohibiiion of
suicide in
Islam by
virtue of the
Qur'an
(al-Nisa:29),
and
the
Sllrosh of the
Prophet,
which
contains
tht
report of
two
incidents
where
two
companions on
separate
occasions
received
serious
mfuries
thich
were so
painfill
that
they
lost
foriitude
and
killed
chemselves.
The
Prophet
(p.b.u.h.)
remarked
that
Allah
(s.w.t.) in
respect of
the
act by
one of
them
says,
';My
servant
hastened
himself to
me
and so I
made
paradise
unlawful
for
him",43
and in
respect of
another
who
was a
great
warrior,
the
Prophet
(p.b.u.h)
himself
declared,
C'despite
the
great
feat
displayed by
this
person
that
smgle act by
him
wiped
away all his
services in
the
cause of
Allah
and
doomed
him tO
hell".44
Therefore,
these
textual
authorities are
quite
explicit on
the
issue
and no
force of
other
juristic
reasonirlg
can
overrule
them.
Thus
the
position is
iat
man is
not
master of his
own
life,
hence
his
consent is of no
consequence.
Indeed,
the
view
taken by
the
Maliki
jurists is
preferred orl
the
ground of its
confomuty
with
the
basic
statemerlt
about
human
life.
The
issue
now is
whether if
such
consent is
given by the
relative to a
ffiird
party
or to a
medical
practitioner,
would
at
be
valid,
since
e
Qur'an
(A1-
Baqarah:178)
has
already
provided
them
w;*
ie
auiority to
opt
either for
52isas
or
demand
dWyah
instead or
completely
forego
their
right
granlitously.
On
iis
issue
also
chere
are
two
opinions by
the
jurists. It is
held
chat it is
not
valid on
the
basis of
analogy
(Al-Oias)
since
the
right of
pardon
presupposes
the
death of
the
deceased,
while orl
junstic
preference it is
valid
merely
because
the
effective
cause of
death of
the
deceased
(the
inillry) is
present at
dat
time.
This
posiison is
basically
expressed by
two
noted
Hanafi
jurists:
Al-Sarakhsi45
and
A1-
Kasani.46 It
contains
both
the
rigidity
and
flexibility
but in
both
cases it is a
rery
instructive
statement of the
law.
If
de
view of
invalidity is
upheld,
then it
prevents
evil-doers
and
culprits
from
43
See
Al-Tirmidhi,
Sunan
Al-Tinmdhi,
V.2,
Beirut
Al-Makt:abah
Al-Islaniiyyah, pp.
26>261.
44
Al-Bukhan, op. at.,
V.5 p.
169.
45
Al-Sarakhsi, op. cgt., p.
154.
46
Al-Kasani, ap. cit.) p.
4650.
114 ARAB LAW QUARTERLY
abusing their position by ending the life of the ill, elderly, or even a healthy
person's life by putting their consent into writing in order to achieve relief from
the trouble of caring for them, or to gain access to their estate and wealth by way of
inheritance, and that is why Islam disentitles the killer from the right to inherit
from his victim if he is related to him.
The opinion of validity of such consent, on the other hand, provides a soluiion to
the problem of the most difficult and genU1ne cases of those wholly-paralysed ill
persons: persons whose life-span is only prolonged by life-saving devices, such as
respirators, paremakers, and other sophisticated apparatus, and it is agreed by all
the medical specialists that such a person's state of illness is caused either because
of brain-death or irreversible coma.
But it should be remembered that even in these cases the plea of consent must be
restrictively allowed, in order to prevent its abuse.
(1) The absence of a heart beat and absence of breathing should not be a ground
for declaring a person irrecoverable, but only when a person has lost all
function of his body47 and has been like this for such a time as would be
normal for a person to recover.
(2) Such an ill person should not be put to death by the administering of some
lethal injection, but only by the removal of life-saving apparatus, or by the
stopping of a drug, i.e. it should not be done by a positive act but by
omission (bil-Tark) only.
(3) Once this requirement is met the consent would be operational and all other
conditions48 of pardoning (Al-Afw) from Qisas come into effect. It can be
upon diyah or gratuitous provided all the legal heirs are unanimous.
However, it should be noted that even then the medical doctor has to perform
Al-Kaffarah (expiation), since he can escape legal liability because of permission
but not the sin of causing the loss of life, whose destruction is prohibited.
Duress (Al-Ikrfih)
The culprit who happens to be the spouse or other (closely) related person to the
deceased may contend that he killed the victim because he was under great
pressure and mental distress due to a long period of attendiIlg the patient, or in
legal terminology that he did it under incorporeal duress (Al-Ikrah al-Ma'naunD.49
It is agreed by che majority of Muslim jurists that in the crime of killing, duress,
even if it amounts to a physical threat to one's own life and limb (Al-I*rah), does
47 Todlay with the enormous advPances in medical science it is possible to sustain the funcdon of both
hean and lungs even where there is a total loss of brain actinty; therefore these factors must be taken
into account when liability for mercy killing is at issue.
48 See for details, Ibn Qlrlesmsh, op. cit., V.ll, pp. 58S590.
49 Duress (Al-Ikrah) is of two types: compelling duress (Al-Ikrah Mulji') and non-compelling duress
(Al-Ikrah Al-Nafi.s). According to Al-Saraldsi and Bazdawi, any form of threat which is not material or
physical is called Al- Ikrah Al-Adkibi or Ma'nzn. For instance, to threaten someone to do some act by
imprisoning his spouse amounts to Al-Ikrah al-Ma'nau)i, see Abu Zahrah, op. cit., p. 512.
MERCY KILLING IN ISLAM
115
not exonerate such a person from liability.50 Mental distress alone, where there is
physical threat (Al-Ikrah al-Adabz) has no significance on the issue.
Indeed, mercy killing is a serious crime, and no one is allowed to resort to it
under any pretext. It is pllnishable in the same way as a crime of deliberate
homicide. No plea of mercy, duress, or consent can justify or remove its
* -
crimlnallty.
However, the challenge of the tremendous advancements in the field of medical
science, whereby a person who is in a state of permanent coma, and his heart-beat
or breathing can be sustained for so long, finds its answer in the opinion which
maintains that the liability of removing such device is mitigated by the consent of
the legal heirs.
Nevertheless, it still remains to be a subject of dispute because: to prolong a
person's breathing is analogous to sustaining his life math food or drink; and the
rejection of the view by the Hanbalis and Shafi'e to the legality of the consent on
the ground of their non-acceptability of IstiAsan.
50 The Malikis, H^nbalis and Shafies except the hnafies do not exclude the offender from liability
even if he has committed it under the threat of death. See Ibn Qll<1atTlth, op. cit., V. 11, pp. 451-56; Al-
Kasani, op. cit., p. 4630; al-Dassiiqi, op. cit., p. 244; Ibrahim Ibn Ali Al-Shirazi, Al-Muhadhffiib, V.2,
Dar Al-Fikr, n.d., p. 77.