'Oh, no. It costs a lot more than your (own) life. To murder innocent people?'
Although globalization is advancing at the seams of the 21st century, it remains unclear as to when will the legal systems across the world harmonize. The differing principles, customs, and their applications are ones that scholars attempt to understand by interlacing them. But not all policies and sources can be interpreted similarly. Some systems, such as Shariah law, have legal mechanisms that diminish both consequences and responsibility if seen through a secular lens. So, would it be daring to say that man has evaded a death penalty and received a profoundly minimized consequence of a crime such as murder, after raping and killing his daughter by paying her mother SR 300,000 (USD 79,990)?
It may quite be surprising to some that the Islamic legal framework allows diya which some refer to as blood money. The payment of diya allows an offender to compensate a victim's heirs or family for the violent and heinous crime they had committed. It also provides the offender relief from retaliation. Some legal scholars have compared diya to 'clemency' a form of pardoning that secular legal systems implement and the international law recognizes. However, for the sake of technicality and clarity, we must distinguish between what is recognized by international law as a pardoning mechanism and the reality of what Shariah law permits.
Blood Flow - Cash Flow
There are three differing categories of crimes that can be committed under Islamic Jurisprudence. The one to be discussed in our article is qisas. It broadly covers criminal acts such as intentional killings-murders, accidental or unintentional killings, and non-fatal bodily injuries. Shariah law punishes those who commit qisas through the death penalty or the payment of diya. In the United Arab Emirates, Federal Law No.3 of 1987 On the Promulgation of the Penal Code separates 'intentional killing' and 'unintentional killing.1 Article 28 classifies 'intentional killing' as felonies punished by qisas of which the punishments include the death penalty, life imprisonment, or temporary imprisonment.2 In such a case diya can only be awarded if the family or heirs agree to grant it. However, Article 29 describes 'unintentional killing' as misdemeanors where diya is a punishment that can be awarded by the Court as per Article 29(3) (while the death penalty is a viable punishment).3 Other misdemeanor sentences include a fine exceeding 1,000 UAE Dirhams or temporary imprisonment. Here the law specifically mandates the application of the Shariah law.
In an application of law discussed above, the Dubai Court of Appeal has sentenced the doctor, cook, and restaurant supervisor that caused the unintentional death of Nathan and Chelsea D'Souza by food poisoning to jointly pay UAE Dirhams 4000,000 as a diya payment. Also, each offender was fined to pay UAE Dirhams 20,000. As stated above, this offense was considered to be a misdemeanor of which the qisas punishment of a death penalty is not an option as per Article 29 of Federal Law Number 3 of 1987.
As the decision calling for a contribution of diya payment is in the hands of the victim's family and heirs, one could perceive it as a non-judicial grant. However, as will be discussed later, this raises to question whether the practice of giving diya payments contravenes international human rights law.
The thirteen jurisdictions that currently practice diya are Saudi Arabia, Bahrain, UAE, Kuwait, Libya, Jordan, Yemen, Iran, Sudan, Nigeria, Somalia, Afghanistan, Jordan, and Pakistan. With such practice comes the requirement of understanding not only the traditional fabric within which the Shariah law operates; but also the traditions of each country and their colonial influences. Following such, although the victim's families or heirs have the right to choose whether diya payment will be granted some governments also encourage it. The offender may also still face a prison sentence even in matters where the offender has settled diya payments.
Pakistani application of the Shariah principle can be seen in PLD 2015 Supreme Court 77 (Criminal Appeal Number 126 of 2012) Zahid Rehman Vs State (Criminal Petition Number 568 of 2011):4
Referring to Section 302 (1), Section 304, and Section 306, to 308 of Pakistan Penal Code, the Courts held that "this intentional murder was not liable to qisas. Section 299 (K) of Pakistan Penal Code defines "qisas" as 'punishment by causing similar hurt in:-
- the same part of the (victim's) body of the convict as he had caused to the victim or;
- by causing his death if he had committed intentional murder, in the exercise of the right of the victim or a wali (family or heir of the victim).
The word qisas meant "return of evil for, evil" and it also meant "retaliation." The court further held that punishment of "qisas" left no room for 'tazir' punishment (a lesser category of a crime worthy of punishment under Shariah law) to be included and concluded that if the offender is not liable to tazir, then he would only be liable to diya. The courts also relied on Muhammad Akram vs the State (2003 SCMR 855)5 and held that (if tazir were to be considered in deciding on qisas) such interpretation would result in granting a license to parents or guardians to kill innocent persons within their families.
Each diya implementing state decides the amount of diya payment differently. In Saudi Arabia and Pakistan, the diya amount is determined by the Shariah Judge. While in the United Arab Emirates the government negotiates with the family or heirs on behalf of the offender. In Iran, the amount of diya gets negotiated between the family or heirs and the offender. What may surprise more, is that it is permissible for the families or heirs to decline the payment of diya in its entirety and instead grant a pardon (known as afw) as an act of compassionate religious charity allowing the offender to evade any and all punishment or only a lesser sentence. The scope of afw is, however, one separate from diya.So, if we take what has been outlined above as a basic understanding of diya, it is evident that diya does not fit neatly into the boxes of clemency as understood by secular law systems. The United States of America defines clemency as the conversion of a death sentence into a lesser order of imprisonment. However international law would find clemency synonymous to commutation. Commutation is the substitution of a court-imposed punishment to a minor correction. This rule could apply to any prison sentence and would not be limited to qisas. Further, unlike diya, clemency would be a power possessed by an executive and as such gets witnessed as a power related to the principle of sovereignty. Such an executive may be the head of state, a government minister, or a pardons board.
The main difference mentioned above is the crux of the inadequacy of comparison. The power held by a private citizen to decide whether an offender should receive a form of pardon such as diya is one that opposes fundamental principles of secular legal systems. As such, diya cannot get classified as a pure form of clemency. Not only does the power to grant clemency come from the executive but some Shariah implementing countries also retain the option to grant clemency and pardon in murder compensation regardless of whether diya gets refused or granted. The application of diya is also more prevalent than the claim for clemency. This aspect then boils down to where the power to award lies. As private citizens can decide to grant diya more readily than the political and legal process, an executive must adhere to reach a decision of granting clemency.
However, it is understandable to note the similarities that allow legal scholars to combine the two principles under one umbrella. In both cases, the power lies outside the scope of the judiciary. Regardless of such, both are within the legal framework of their respective systems and are authorized by the legislative. Further, the decision regarding the guilt of an offender remains within the ambit of the court's judiciary, and both diya and clemency relate to the reduction of punishment only after this decision gets established. Finally, as the granting of both is outside the scope of the judiciary, allowing a grant raise a question as to whether in doing so the authority of the courts gets subverted when involving and imposing non-judicial decision as punishment or retribution.
What we would like to put forward is the necessity of a new theoretical paradigm that allows legal scholars to develop their understanding of diya outside the walls of clemency. As shown above and as will be discussed below, diya is subject to its principles and legal framework that is not compliant with a secular legal system. As it resolves disputes between individuals under the territory of criminal law, it can classify as a union of criminal and civil law. This union may be the beginning of the introduction of a new theoretical paradigm.
Also, when in association and through the interpretation of clemency, diya is given a defense regardless of the possibility of it contravening international human rights law. Article 6(4) of the International Covenant on Civil or Political Rights gives prisoners the right to seek commutation or pardon. This rule gets unjustly inhibited by the practice of diya. Those with limited financial resources, of a young age, bereft, and ordinary prisoners, foreigners, or without ties to the locals have their right to pardon diminished or stripped away. Further, the power to forgive is a substantial power and granting such power to the family or heirs of a murder victim is the issue. Families or heirs are often emotionally and financially invested in their decision to grant or refuse diya. There is an inadequate level of detachment that exists and which is necessary and gets on the surface upon implementation of clemency.
So, should the relocation of pardoning to a private individual who lacks the level authority an executive possess be allowed?
Although the borders of both diya and clemency may appear to be similar, what covers within their substantive boxes differ. In understanding the principle of diya, legal scholars may look to clemency to provide a basic footing but will be required to delve into the technicalities of the diya principles through a different lens. Moreover, the diya principle's root of Islamic jurisprudence results in the questioning of whether it is compatible with international human rights law. Unlike clemency which is granted through political and judicial checks and applies the doctrines of sovereignty and separation of powers, diya has no legal implications.
1 Federal Law No.3 of 1987 On the Promulgation of the Penal Code
2 ni Article 28
3 ni Article 29(3)
4 PLD 2015 Supreme Court 77 (Criminal Appeal Number 126 of 2012) Zahid Rehman Vs State (Criminal Petition Number 568 of 2011):[iv]
5 The courts also relied on Muhammad Akram vs the State (2003 SCMR 855).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.