PENAL LAW ISSUES AND PUNISHMENTS
A. PRESUMPTION OF INNOCENCE/COMPETENT WITNESSES (Date published: 23 June 2002)
Question: I am a professional Mechanical Engineer working in a big Company in Kuwait. I have been following the cases of OFWs since I arrived in Kuwait last year. I noticed that accused OFWs are not given enough time in court to prove their innocence. If I may ask, are accused individuals presumed guilty under Shariá law or Kuwaiti law?
Answer: Firstly, your observation is incorrect. Accused OFWs are given enough time in local courts to prove their innocence under Shariá or Kuwaiti laws. Please be informed that Kuwaiti courts have several stages or levels from the lowest courts to the highest court. In between is the Appellate Court that serves as a buffer and review the decisions of the lower courts (Justice Palace Library, State of Kuwait, Kuwait Pocket Guide, 2002). I know some cases of OFWs, which have reached the Appellate Court and Cassation (Supreme) Court. Secondly, Shariá law does not presume the accused guilty. The accused is presumed innocent as in the Philippine judicial system. In fact, Shariá requires among others, the testimony of at least two male witnesses to prove one’s guilt (Al-Hadith). And in the case of fornication or charges against chaste women, four male witnesses must stand before the jury under oath in the strongest terms possible (24:440, The Holy Qurán). Thirdly, under Article 34 of the Kuwait Constitution, it is categorically states that AN ACCUSED PERSON IS PRESUMED INNOCENT UNTIL PROVED GUILTY IN A LEGAL TRIAL AT WHICH THE NECESSARY GUARANTEES FOR THE EXERCISE OF THE RIGHT OF DEFENSE ARE SECURED. Finally, please be informed that Kuwait’s penal law is not totally based from Shariá law. But, its family law, i.e. marital, property-related, etc. are fully covered by Shariá or Islamic law (Kuwait Constitution). For your update, the move to Islamize Kuwait’s penal law is still for deliberation in the parliament.
B. NON-APPLICATION OF BLOOD MONEY TO DRUG-RELATED CASES AND REGULATIONS ON THE KILLING OF ANIMALS FOR FOOD (Date published: 07 July 2002)
Question: My friend is one of the recent OFWs arrested and jailed for selling drugs. In my visit to her at the Salmiya Police Station, she requested me to negotiate for their release through the payment of blood money, like other jailed OFWs who were allegedly released upon payment of blood money. I’m new in Kuwait and don’t know the procedure in Shariá or Islamic law about this matter. On their behalf, I would be grateful to know through Panorama, if they could avail themselves of the so-called blood money.
Answer: I regret to write through this column that you and your jailed friend are misinformed about the so-called blood money or diyyah under Shariá or Islamic law. Blood money or diyyah does not apply to your friend ‘s and her cohorts’ case. Blood money is applicable only to murder or homicide cases and physical injuries (Faruqi’s Law Dictionary). However, I wish to let you know that Shariá or Islamic law allows the settlement of murder or homicide cases through blood money or diyyah, in order to save the life of a murderer from the death row. In brief, the blood money or diyyah takes the place of a death sentence. This method is simply a gesture of Islamic mercifulness, which pictured to every believer the value of one’s life, although in contrast, it imposes death to a killer (The Holy Qurán). The imposition of death penalty is based on the sacredness of life in Islam. Since the Almighty GOD is the life Giver, it follows that it is only He, who has the right to take away the life from every individual. In other words, life cannot be taken for sports or for sacrificial and medical purposes, much more for killing a person (Abdurahman Doi, The Fountain Head of Shariá, pages 231-233). In fact, even the killing of animals for food is regulated by Shariá to ensure the blessings of the Almighty, i.e., by employing a dedicatory formula and reciting “Bismillahi Allaho Akbar”. Therefore, it is incumbent upon every individual that under no circumstance should he or she is found guilty of taking away a human life.
C. PRACTICE OF BLOODMONEY OR DIYYAH IN KUWAIT (Date published: 15 September 2002)
Question: I am one of the FILCOM leaders who attended in a meeting last 12 September 2002 at the Philippine Embassy regarding legal & consular assistance to OFWs in Kuwait. My colleague is a murder victim and there was already an offer for blood money from the assailant who is now in jail. Since my colleague’s heirs knew me for many years, they requested me to inquire first before giving their answer to the said offer. For this reason, I would appreciate it if you could let me know through Panorama the mechanics of the so-called blood money.
Answer: Blood money or diyyah is referred to the compensation paid by a killer or murderer to the relatives of the victim. However, this Shariá form of penal compensation does not apply to a premeditated killing, thus, the law of equality or qisas (tooth for a tooth or an eye for an eye) is strictly applied as a matter of rule. As practiced under Shariá or Islamic law, the application of blood money or diyyah connotes the value of saving an individual’s life. It underscores the principle that to save one’s life is to save a whole community. Therefore, it is better for the relatives of the victim to forgive and accept the blood money or diyyah in the form of compensation, than allow the hanging or imprisonment of another individual. In Kuwait, as soon as the offer for blood money or diyyah is agreed upon, and a letter of forgiveness or tanazul is executed and submitted by the victim’s Shariá or Islamic heirs, half of the sentence of the convict is automatically eliminated or the sentence reduced to half. The remaining half of the sentence now becomes subject to a possible Amiri pardon (presidential pardon), upon recommendation of the Ministry of Justice. This system is based on the Shariá concept that every crime committed inflicts injury both to the direct or private victim and the public in general. Therefore, when it comes to penal obligation or compensation, the relatives of the victim represent the private aspect, while the Head of State represent the public. Under this circumstance, the convict gets his/her complete freedom upon payment of blood money or diyyah and the other half upon receiving an Amiri pardon from the Head of State.
D. APPLICATION OF BLOOD MONEY OR DIYYAH TO PHYSICAL INJURIES (Date published: 19 January 2003)
Question: Please let me know whether blood money is also applicable to physical injuries. I asked this question because one rich Kuwaiti who accidentally hit my officemate, was never brought to jail. Instead he offered blood money to compensate my officemate’s injuries. Unfortunately, my officemate losses his sense of hearing and left eye as a result of the accident. Is this right under Shariá law? I thought that blood money is only applicable to death or loss of life.
Answer: Please be informed that blood money or diyyah in Arabic is not only applicable to death or loss of life, but also to physical injuries. And one of the conditions of blood money is that the injured party is willing to be compensated. Among others, Shariá jurisprudence has identified the payment of blood money in the following cases:
- Removal and loss of intellect.
- Loss of hearing and/or ears.Loss of vision or damage to eyes.
- Loss of voice by cutting off or damage to tongue or lips.
- Loss of sense of smell by cutting off or damage to nose.
- Loss of sexual desire.
- Any form of physical disability.
E. BEATING OR TORTUNING AN ACCUSED (Date published: 02 March 2003)
Question: I am one of the OFWs accused in a murder case. During the interrogation, I was forced and severely beaten to confess guilt, despite my innocence of the crime being imputed to me. However I never yielded to the pressure. Thanks God, as the judge has finally set me free after thorough review of my case. For this experience, I would like to know if beating and torture are permissible under Shariá law?
Answer: As a rule, beating and torture of an accused are not permissible in any court of law, much more under Shariá law. I hope you don’t have the impression that Shariá tolerates beating and/or torturing an accused. In fact, Shariá jurisprudence condemns them in the strongest terms, as they are not only acts of inhumanities, but injustices and partialities against the basic rights of every accused who are presumed innocent until proven otherwise. You may not know that beating and/or torturing an accused are direct form of punishment, despite the lack of judicial resolution. Consequently, any statement extracted from the accused through duress and torture is insufficient to cause for the implementation of punishment. In your experience, I am of the belief that the instinct of Shariá among Muslim judges might have influenced your exoneration, in addition to your being innocent of the crime (Sheikh Ibn Baz, Al-Fatawa Islamia, Vol. 6). Only God knows best.
F. PRISONERS OF WAR (To be published (27 April 2003 issue)
Question. The on-going war in Iraq prompted me to ask whether there is a specific law on the prisoners of war under Shariá law, similar to the kind of law under the Geneva Convention.
OFW S. Esguerra
Answer. Yes. There is a law on the prisoners of war or captives under Shariá law. And this law had been prescribed ahead of the so-called Geneva Convention by centuries. You may wish to note that, Shariá jurisprudence sourced its ruling from an incident where Prophet Mohammad (upon whom be peace) made a clear-cut ruling about the prisoners of war or captives. In one battle between the Muslims and the infidels or disbelievers in Makkah, Abu Aziz bin Umair, infidels’ standard bearer was captured along with other infidels by the Muslim fighters. When the Muslim fighters reached Madinah together with the prisoners, the Prophet immediately told his companions to treat generously Abu Aziz and the other prisoners. However, due to strong feeling of hatred against the infidels, one of the Prophet’s companions opined that all the prisoners should be executed, but this did not prevail as Othman, one of the Prophet’s trusted Caliphs strongly opposed it. Instead, he proposed to deal with the infidels on a matter that would benefit the Muslims, in exchange for the prisoners’ liberty. Upon release of Abu Aziz and other prisoners, he told his Makkan relatives how he was treated well by his Muslim captors. Subsequent battles were fought and both sides were able to hold more prisoners. From the Muslim side, the Prophet’s ruling remains as their basis in the general treatment of prisoners or captives of war. And consequently, this ruling has been descended to the modern-day Muslim leaders (Akbar Shah Najeebabadi, The History of Islam, vol. 1., p.163).
G. OVERVIEW OF CRIMINAL LAW IN ISLAM* (Unpublished)
Penal or criminal law in Islam is called al-Uqubat (singular, al-Uqubah). It covers both torts and crimes. One can hardly draw the difference between the two. Shariá emphasizes the protection and respect of the private rights of every individual and the public in general.
The law that gives remedy to an offense against the public is a crime and to the individual is a tort. Uqubat applies to Muslims, as well as non-Muslims alike in a Muslim state. Please note that a Muslim will also be punished for a crime committed even if it was done far away from the Islamic state. In an ultimate sense, it is a crime against God, and he will be punished once he came home or was brought back by the authorities of an Islamic state.
The qadi or Shariá judge has to abide by the law prescribed in the case of uqubat, and hence he is forbidden to impose a penalty other than that fixed by the Divine law in conformity with the injunctions of the Qurán and the Sunnah.
Hadd punishment is only given when there is a violation of People’s rights. Hudud is the plural of an Arabic word Hadd, which means prevention, restrain or prohibition, and for this reason, it is a restrictive and preventive ordinance or statute of God concerning lawful (halal) and unlawful (haram) things. In Shariá jurisprudence, the word huddud is limited to punishments for crimes mentioned in the Holy Qurán and Sunnah, while other punishments are left to the discretion of the qadi or judge. This rule is called Taázir.
Generally, all violations and breaches of Divine limits are not punishable since the punishments are only inflicted in those cases in which violation or violations of other people’s rights are present. For example, one’s negligence to perform his prayers or fasting is not punishable on earth, as these matters are left to the Almighty God. But, if one does not pay Zakat or poor due, which is a charity as well as a tax from the rich to the poor, a punishment is accorded. During the time of Caliph Abu Bakr, he sent out troops against certain Arab tribes for withholding their Zakat or poor due. In an Islamic form of government, withholding of Zakat or poor due is tantamount to rebellion.
Crimes, which are punishable under Shariá law, are acts affecting the society’s moral, peace and order. These are:
- Murder or Qatl
- Highway robbery or Hirabah
- Theft or Sariqah
- Fornication or Zina
- Accusation of adultery or Qadhaf
Punishments thereof are divided into four (4)
- Physical punishments, which includes death sentence, amputation of hand, flogging and stoning to death.
- Restrictions of freedom which includes imprisonment or sending one on an exile
- Imposition of fines
- Warning given by the qadi
The afore-mentioned are awarded in the following:
- Penalties exacted for committing murder, manslaughter or physical injuries.
- Theft by amputation of a hand.
Fornication or adultery by stoning to death for a married person and 100 lashes for an unmarried person.
- Slander by 80 lashes
- Apostasy by death
- Inebriation (drinking liquor) by 80 lashes
- Highway robbery (qata al-Tariq) by death
Other cases are covered by Taázir. In brief, the qadi or judge is given a wide discretion in the application of punishment under Shariá law.
While it is true that punishments under Shariá law are stiff from the viewpoint of Shariá non-conversants, Muslims in general are taught to be forbearant or sabirin, as earlier discussed in the concept of blood money or diyyah (please refer to foregoing items: B, C & D). They are also asked to prevent the repetition of crimes by taking steps and applying both physical and moral means.
Moreover, in the interpretation or application of the afore-mentioned crimes and punishment, the qadi or judge is enjoined to be liberal as much as possible in favor of the accused. For example, in the case of theft, the accused should not be given the Hadd punishment without due process. In a Muslim state, every individual is entitled to social security through the Bait al-Mal or National Treasury, where funds are deposited from various sources including the obligatory collection of Zakat or poor due. Under this concept, it follows that if a citizen was not taken care of through the funds and eventually committed the crime of theft for survival, the accused is not automatically given the Hadd punishment. This is in keeping with the decision of Caliph Umar not to apply Hadd punishment to those accused of theft during the period of famine in Medina.
In a rape case, four (4) eye and competent witnesses are required to prosecute the accused. Shariá schools of law are unanimous on this matter in view of the honor, dignity and pride of a person involved, both the accused and accuser. And in my observation, very few rape cases prosper in court. Mostly are settled extra-judicially. Sometimes, the accused (even for a consensual sex) would rather opt for an amicable settlement than have his name heralded or docketed in court. The same applies to a rape victim. To the Muslims, the price is too high to be accused in a rape case, whether it is true or not since in reality they have no reasons to do so inasmuch as able Muslim men are allowed to marry up to four (4), under Shariá or Islamic law.
Only God knows best.
English translation of the meaning of the Holy Qurán
Abdur Rahman Doi, Crimes and Punishment under Shariá law, 1984