Friday, May 19, 2017

Explaining 'diyat' to society...

In the name of Allah, the Beneficent, the Merciful; blessings and peace be upon Prophet Muhammad s.a.w.


The Declining Day (Al-'Asr)
1. By the declining day,
2. Lo! Man is in a state of loss,
3. Save those who believe and do good works, and exhort 
one another to truth and exhort one another to endurance.

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RECENTLY it was reported that the Pahang Pardons Board plans to adopt the Islamic law of 'diyat' as an alternative to grant pardon to convicts awaiting death sentence.
The Regent of Pahang, Tengku Abdullah Sultan Ahmad Shah said the system, believed never implemented in other states, had been discussed by the board.
"This system provides an opportunity for convicts to be given other suitable punishment instead of the death sentence based on the views of the victim's family.
"This approach is accordance with Islamic law. We can discuss with the families of the victims, and it depends on cases," he said.
'Alhamdulillah' (All praise be upon Allah), 'jazak Allahu Khayran' (may Allah reward you with goodness) to the Regent of Pahang for his farsighted views and wishes for the people of Pahang Darulmakmur to live peacefully, harmoniously and bountifulness under the blessing of Allah SWT: one way is by studying and implementing His laws such as the 'diyat'.
However, 'diyat' to many, even to Muslims is a 'strange' word or term. I witnessed it during a 'tazkirah' (Islam lesson) at a 'masjid' near my house recently when a young man suddenly stopped and asked the 'ustaz', what is 'diyat' when the ustaz mentioned the word in his lesson.
The 'ustaz' gave a brief answer....I guessed the questioner himself would have difficulty in understanding it...actually the 'ustaz' had gave lessons (and still on-going) on 'Fiqh Jinayat' at the 'masjid' on a weekly basis but unfortunately the young man was not a regular attender.
From his lessons which I had followed for years now, the 'ustaz' had explained that Islamic criminal laws comprises of 'hudud' (hodoud), 'qisas' (quisas) and 'ta'zir'. 'Hudud' is prescribed by Allah SWT in the Qur'an and 'hadith'. 'Hudud' is His Law and His Rights. In Ayah 229 Surah Al-Baqarah Allah SWT says with the meaning: "For whoso transgresseth Allah's limit: such are wrongdoers." 
Examples of 'hudud' are punishment to those who committed illicit sex (zina or adultery), accusing people of illicit sex but failed to bring four witness (qazaf), taking alcoholic drinks, stealing, robbing, being apostate and fighting against an Islamic government (bughat).

"Ta' zir' is punishment for crime not measuring up to the strict requirements of 'hadd' (hudud) punishments, although they are of the same nature, or those for which specific punishments have not been fixed by the Qur'an. 

Punishments range from the death penalty for espionage and heresy to flagellation, imprisonment, local banishment, and a variety of fines. Determination of punishment is left to the judge or chief executive, who can vary the punishment according to a number of criteria including who has inflicted the crime and upon whom.

'Qisas' means retaliation, in the case of murder, it means it is the right of their heirs of a murder victim to demand execution of the murderer. 'Qisas' literally means "'pursuing, seeking or to return like for like." From this it also acquired the meaning of "retribution, requital and punishment." The basic rules of 'qisas' are mentioned in the Qur'an.

Allah SWT says, "O you who believe, retribution is prescribed for you in the cases of killing; if a freeman is guilty then the freeman; if a slave is guilty then the slave; if a female is guilty then the female. But if something of the murderer's guilt is remitted by his brother then this should be adhered to in fairness, and payment be made in a proper manner. This is alleviation and a mercy from your Lord; and for him who transgresses after that is a painful chastisement. People of understanding, there is life for you in retribution that you may guard yourselves against violating the Law." (al-Baqarah 2:178-179)

'Qisas' is primarily the right of the family of the victim. Allah says, "...whosoever is wrongfully slain, We have given power to his heir, but let him not commit excess in killing. Lo, he will be helped." (al-Isra' 17:33)

If a person is murdered, then according to the Shari'ah, if the duty of the society and the state to pursue the murderer and to bring him/ her to justice. Once the murderer is found and it is proved beyond any doubt that the murderer killed another person knowingly and offensively, as a pre-meditated murder, then he/she will be given capital punishment. However, the nearest relatives or heirs of the victim have a right to take monetary compensation instead or to forgive the murderer. No one else has right to forgive except the nearest kith and kin of a person. 

As for killing without intention,  the 'ustaz' cited examples such as a person who throws a 'karipap' (curry-puff) to another person's head but unfortunately he dies or a hunter aim and shot his gun at a deer but instead his friend was killed - then the 'killers' are all subjected to 'hukum qisas' with the 'diyat' applicable.

Since murder, according to the Shari'ah, is not only a crime against a family, but also a crime against the society at large, the Muslim jurists have explained that even when the victim's family forgive the murderer, the Muslim judge is allowed to prescribe some punishment (other than the capital punishment) or imprisonment, if the judge sees that the offender needs that for his/ her own correction or as a deterrence for others in the society. 

Thus, we can say that according to the Shari'ah, no one can forgive the murderer except the victim's family and nearest kith and kin. The State cannot forgive a murderer, but the state is allowed to punish the murderer if it is necessary to maintain the safety and security of the society, even if all the relatives of the victim are ready to forgive the murderer.

According to the ustaz, those who committed the crime should be punished accordingly to what they did. If he kills, he must die. Allah SWT says "We have prescribed for thee therein ‘a life for a life, and an eye for an eye, and a nose for a nose, and an ear for an ear, and a tooth for a tooth, and for wounds retaliation;’ but whoso remits it, it is an expiation for him, but he whoso will not judge by what God has revealed, these be the unjust." (Qur'an 5:45)

The Qur'an specifies the principle of 'qisas' (ie, retaliation), but prescribes that one should seek compensation (diyat) and not demand retribution.

So, what is actually ‘diyat’? ‘Diyya’(plural: Diyyat; Arabic:) is compensation paid to the heirs of a victim. In Arabic the word means both blood money and ransom.

The Qur’an directed to pay 'diyat' just according to this law both in case of intentional as well as un-intentional murder. A variation of 'diyat' was present in pre-Islamic Arabia, where it was paid in terms of goods or animals rather than cash.

In Sharia law, 'diyat' should be paid in terms of cash to avoid possible fraud on the part of the criminal In Islamic and Arab traditions, blood money is the fine paid by the killer or his family or clan to the family or the clan of the victim. It is unlawful for a believer to kill a believer except if it happens by accident. And he who kills a believer accidentally must pay 'diyat' to the heirs of the victim except if they forgive him. The tradition finds repeated endorsement in Islamic tradition; several instances are recorded in the Hadith, which are the acts of Prophet Muhammad s.a.w.

According to the 'ustaz', the rate for 'diyat' is based on the number of camels that is the most priced belongings. The full rate is 100 camels.

Killing intentionally was subjected to 'qisas' and 'diyat'. 'Diyat' is only applicable if agreed by kin. If not, 'qisas' would be honoured.

In a class by another 'ustaz' that I followed, he explained unintentional crimes including driving offenses, which resulted in death, could also be subjected to 'diyat'. If the person intentionally rammed into a person to kill him, he is subjected to 'qisas', he had to die, his head executed.

If he unintentionally killed a person in the accident, then he must pay the 'diyat'; that is 100 camels. If he crippled the person, the amount varies from 100 camels, 50 camels and so on.

Paying 'diyat' of 100 camels is no cheap said the 'ustaz'. If a camel costs RM5,000; those who kill unintentionally including in road accidents had to pay RM500,000. 

If three persons die, the payment would be RM1.5 million. Of course this huge amount would make those behind the wheels (drivers) shiver thus avoiding madness and careless driving.

Unfortunately and sadly, the 'ustaz' said the Islamic law mentioned are only for discussion...Subhanallah, are our leaders prepared to implement Islamic laws, which according to the 'ustaz' are perfect on human beings because He who creates knows what's best for His subjects!  

Hopefully, the move by the Pahang Pardons Board to adopt 'diyat' would an eye opener for all, thus all parties and individuals who love Islam must prove their worth - going all out to explain Islamic laws including 'diyat' to society and then implement it!

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