Ideological Guidelines
I would like to lay down the following guidelines that are relevant to judging apostates:
1. Judging whether someone has apostatized from his or her religion is a very serious matter that entails being deprived of his or her family and community. When a married man apostatizes from Islam, he is separated from his wife and children, as it is not lawful for a Muslim woman to be married to a disbeliever;11 and with regard to children, he is no longer trusted to take care of them. In addition, there is a material punishment to be inflicted upon him, according to the scholarly consensus. Hence, all kinds of certainty must be established when judging a person — who has been certainly known to be a Muslim — as an apostate. Mere doubt here is to be disregarded altogether. One of the most horrendous things which the Prophet's Sunnah seriously warned against is to label someone disbeliever without having any legal proof to say so.
2.<b> Issuing fatwas about the apostasy of a certain person is within the competence of reputable scholars who are well-versed in Islamic jurisprudence and can differentiate between clear-cut evidences and those which are ambiguous, between the verses whose meanings are established and those whose meanings are allegorical, and between religious texts wherefrom possible deductions may be made and those which must be taken literally. They are not to label someone an apostate unless there is no alternative but to do so, such as (making sure that) he or she has denied a fundamentally established principle of religion or mocked at it, or insulted Almighty Allah and His Messenger publicly, verbally or in writing, and the like.
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[<b>color=#3333FF]The gravity and seriousness of the issue of passing judgment in this regard dictates that it is not left at any rate to the discretion of unqualified scholars, who may give hasty and groundless judgments in this respect.[/color]</b>
3. It is the Muslim ruler who should carry out the punishment of the apostate. The punishment should be decided according to the judgment of the Muslim judiciary. This judgment should be based only on Almighty Allah's Law, which derives its rulings from the evidences in Allah's Book and the Sunnah of His Messenger, as the Qur'an and Sunnah are the main sources to which people are to resort when they differ on something. Almighty Allah says in this respect, [if ye have a dispute concerning any matter, refer it to Allah and the Messenger if ye are (in truth) believers in Allah and the Last Day] (An-Nisaa' 4:59).
The qualification for being a competent judge in Islam requires that one possess knowledge of the rulings of Shari`ah by way of personal reasoning (ijtihad) from primary religious texts. And if a person lacks this qualification, he or she must seek the help of reputable scholars who are capable of ijtihad, so that they can uncover the truth and not issue groundless judgments or pass them out of whims, in which case he would be doomed to Hellfire (on the Day of Judgment).
4. The majority of scholars are of the opinion that apostates should be asked to repent and return to Islam before punishment is inflicted upon them. Moreover, Ibn Taymiyah, in his book, As-Sarim Al-Maslul `ala Shatim Ar-Rasul,, wrote, "The Prophet's Companions (may Allah be pleased with them) were unanimous that the apostate be asked to repent and return to Islam before punishment is inflicted upon him."
Some jurists say that an apostate should be given a 3 day respite to repent; some say it is less than this, some say it is more, and some others say he is to be asked for this for as long as he lives. Some scholars, however, made exception of the hypocrite (zendiq), who pretends to be a Muslim never actually was. According to certain scholars, repentance cannot be accepted from hypocrites. This applies also to those who insult the Prophet (peace and blessings be upon him).
The purpose of the respite given to apostates here is to give them a chance to review their situation, as they may overcome their state of confusion and become convinced of Islam as the true religion; if they are really seekers of the truth. But if their apostasy is based on desires or an activity in the interest of the enemies of Islam, may Almighty Allah severely punish them.
Some contemporary intellectuals say that it is Almighty Allah, not man, who accepts (or refuses) repentance. But this has to do with the rulings of the hereafter. As with those of this world, the apparent repentance (of sinners), and declaring their Islam, is to be accepted by the concerned authorities. Almighty Allah orders us to judge people according to their apparent states, and their intentions are up to Him to decide upon. In this regard, an authentic hadith is reported to the effect that the blood and property of those who bear witness that there is no god but Allah will be inviolable and that their reckoning will be with Allah (concerning their intentions and what they harbor in their hearts).
Therefore, if individuals were to take it upon themselves to label people as apostates and judge them accordingly as deserving the death penalty, and, moreover, seek to implement the penalty themselves, it would pose a great danger to people's lives and properties. If this were to happen, it would entail that ordinary unqualified people would possess three authorities simultaneously: the authority of giving fatwas — by accusing certain people of being apostates — the authority of passing judgments, and the authority of carrying out those judgments. In other words, they would be acting as muftis, prosecutors, judges, and police all together.