Justice for Family Victim in Homicide Case : Malaysian Perspective
JUSTICE FOR VICTIM’S FAMILY IN HOMICIDE CASE: A MALAYSIAN
PERSPECTIVE
UMAR MUKHTAR BIN MOHD NOOR
UNIVERSITI SAINS ISLAM MALAYSIA
JUSTICE FOR VICTIM’S FAMILY IN HOMICIDE CASE: A
MALAYSIAN PERSPECTIVE
Umar Mukhtar Bin Mohd Noor
(Matric. No. 1080183)
Academic project report submitted in partial fulfillment for the
BACHELOR OF SHARIAH AND LAW WITH HONOURS
Faculty of Syariah and Law
UNIVERSITI SAINS ISLAM MALAYSIA
Nilai
June 2013
i
AUTHOR DECLARATION
بسم اهلل الرحمن الرحيم
I hereby declare that the work in this academic project is my own except for quotations and summaries which have been duly acknowledged.
Date: 15th of June 2013
Signature
: ...…………………………….
Name
: Umar Mukhtar Bin Mohd Noor
Matric. No.
: 1080183
Address
: No. 4, Jalan 3/3, Taman Desa
Taming Sari, 76300 Sungai
Udang, Melaka, Malaysia.
ii
إقرار المؤلف
بسم اهلل الرحمن الرحيم
إنين أقر وأعرتف أن هذا البحث من عملي وجهدي الشخصي. أما املقتطفات واالقتباسات لقد
أشرت إىل
مصادرها يف هامش البحث.
الرتيخ
: 15 يونيو 2513
التوقع
:..................................
االسم
: عمر خمتار بن حممد نور
الرقم اجلامعي
: 2051015
العنوان
: 4، جالن 2/2 تامن ديسا تامينج ساري، سوجناي أودانج 11200، مالك،
ماليزيا
iii
ACKNOWLEDGEMENT
In the name of Allah, the Most Merciful and the Most Compassionate.
Alhamdulillah, praise to the Almighty. Grateful to Him who had made this work become possible complete.
Then, I would like to express my deepest appreciation to all those who provided me the possibility to complete this report. A special gratitude I give to my final year academic project supervisor and also my lecturer, Dr. Resali bin Muda, whose contribution in stimulating suggestions and encouragement, helped me to coordinate my project especially in writing this academic project.
Next, as regard to my beloved family, the most important person in my life, my parents, Mohd Noor bin Omar and Fauziah binti Md Sharif. Then, not forgotten to my beloved siblings Abidah Aqilah binti Mohd Noor, Nurfathiyyah binti Mohd
Noor, Mohd Syamil bin Mohd Noor and Mohd Nabil bin Mohd Noor. Without all of them, I would not have spirit to undergone this academic project.
Furthermore, I would also like to acknowledge with much appreciation the crucial role of the staff of Faculty of Syariah and Law, Islamic Science University of
Malaysia, who gave the permission to use all required equipment and the necessary materials to complete the task. Special thanks go to the rest of the lecturers and all my colleagues who help me to embrace the idea and gave suggestions about the research.
Last but not least, many thanks go to the Dean of faculty, the Head Program whose have invested his full effort in guiding us in achieving the goal. To all my colleagues, lecturers, I would like to send my deepest gratitude to all of you and ask for forgiveness from my fault. I would like to take this chance to wish all of you the best in your undertaking future.
iv
ABSTRAK
Kajian ini dijalankan adalah bertujuan untuk mengenalpasti kemungkinan untuk melaksanakan undang-undang Diyat dalam system undang-undang jenayah di
Malaysia. Kajian ini juga dijalankan dengan melakukan perbandingan keberkesanan antara undang-undang jenayah Malaysia yang diambil daripada undang-undang British dengan undang-undang Diyat dalam Islam. Kajian ini mensasarkan perlaksanaan yang bersifat umum kepada seluruh rakat Malaysia dan tidak hanya dilaksanakan dalam kerangka bidang kuasa undang-undang Syariah yang terbatas seperti yang diamalkan sekarang. Kajian ini juga bertujuan untuk mengkaji keberkesanan undang-undang jenayah semasa di Malaysia dalam memberikan keadilan yang setimpal dan sokongan kepada keluarga mangsa kes menyebabkan kematian terutama kes bunuh. Kajian ini juga akan melibatkan perbincangan tentangan
pembahagian
saksama
nilai
keadilan
dalam
pernghakiman oleh mahkamah dengan membandingkan pembahagian tersebut antara konteks undang-undang British dan undang-undang Islam.
v
ABSTRACT
The study is to examine the possibility to implement the law of blood money under Malaysian criminal legal system. It is also to compare the Malaysian current legal provision that was brought and developed under British law with the blood money system. It also looks into plural implementation of blood money in civil jurisdiction rather than inserting thereof into the current Syariah criminal jurisdiction. This research is confined to the study of implementation of blood money in homicide case especially in murder. It is also the purpose of this research to examine the effectiveness of current Malaysia criminal law in giving justice and mollifying the family member of homicide victim. This research will also include the discussion on the distribution of justice between British law system and Islamic law system.
vi
ملخص البحث
هذه الدراسة هو دراسة إمكانية تطبيق القانون الدية اإلسالمية يف إطار النظام القانوين اجلنائي
املاليزي.و يدخل فيها املقارنة بني القانوين اجلنائي احلايل اليت جاءت من إطار القانون الربيطاين و
نظام الدية و يبدو أيضا يف تنفيذ جلميع املواطن ماليزيا من الدية يف القضاء املدين بدال من إدراج
ذلك يف والية قضائية جنائية الشرعية احلالية. يقتصر هذا البحث على دراسة تنفيذ الدية يف حالة
القتل خصوصا يف القتل العمد. بل هو أيضا الغرض من هذا البحث إىل دراسة فعالية القانون
اجلنائي ماليزيا احلايل يف إعطاء العدالة والتهدئة أفراد األسرة للمقتول. وسوف تشمل هذه الدراسة
أيضا مناقشة املبدأ توزيع العدالة بني نظام القانون الربيطاين ونظام الشريعة اإلسالمية.
vii
LIST OF CONTENT
Content
Page
AUTHOR DECLARATION
i
ACKNOWLEDGEMENT
iii
ABSTRAK
iv
ABSTRACT
v
MULAKHAS AL-BAHTH
vi
LIST OF CONTENT
vii
LIST OF CASES
ix
LIST OF STATUTES
x
LIST OF TRANSLITERATIONS
xi
LIST OF ABBREVIATIONS
xiii
CHAPTER ONE: RESEARCH PROPOSAL
1.1 Background of Research
1
1.2 Statement of Problems
1
1.3 Objective and Aim of Research
3
1.4 Research Methodology
3
1.5 Literature Review
4
1.6 Scope And Limitation Of Research
6
CHAPTER TWO: INTRODUCTION
2.1 Justice as the Aim of Any Law
8
2.2 The Nature of Justice in Homicide Case
10
2.3 Archaic Dichotomy of Crime and Tort
12
CHAPTER
THREE:
EXHAUSTIVE
PUNISHMENT
FOR
HOMICIDE UNDER MALAYSIAN LAW
3.1 Provision of Homicide in Act 574 of Penal Code of Malaysia
15
3.2 Provisions in Act 593 of Criminal Procedure Code of Malaysia
17
3.3 Effectiveness of Punishment for Homicide Case
20
viii
CHAPTER FOUR: PRACTICES OF BLOOD MONEY LAW IN
HISTORY AND CURRENT
4.1 Blood Money Law in History
23
4.2 Blood Money Law in Current Practices
29
4.3 Real Cases Study
31
CHAPTER FIVE: IMPLEMENTATION OF BLOOD MONEY LAW
5.1 Murder in Compatibility with Malaysian Penal Code.
35
5.2 The Law of Diyat in Islam
38
5.3 Single Litigation
40
5.4 Impecunious Offender: Takaful replacing the system of ‘Aqilah
42
5.5 The Law of Diyah & Takaful v No-Fault Liability Scheme
48
5.6 Blood Money as the Alternative Punishment and Not as a Mere
Additional Punishment
5.7 Plural Administration
49
52
CONCLUSION: SUGGESTIONS AND RECOMMENDATIONS
54
BIBLIOGRAPHY
61
ix
LIST OF CASES
Case Citation
Page
Public Prosecutor v Low Lu Keng Muar, High Court Criminal Appeal No.
42-8-1990
23
x
LIST OF TABLE
TABLE
TABLE 1: Calculation of Diyah
Page
29
xi
LIST OF STATUTE
Name of Statutes
Penal Code [Act 574]
Federal Constitution of Malaysia
Criminal Procedure Code [Act 593]
Pakistan Qisas and Diyat Ordinance 1991
Page
1, 16, 17,18, 49
20, 41
17, 19, 20, 22,
41, 55, 57
30
Sudan Criminal Act 1991
30
Iran Chapter on Hudud and Qisas
30
Kelantan Syariah Criminal Code (II) Enactment 1993
30
xii
LIST OF TRANSLITERATION
ARABIC LETTERS
TRANSLITERATION
أ
a
ب
b
ت
t
ث
th
ج
j
ح
h
خ
kh
د
d
ذ
dz
ر
r
ز
z
س
s
ش
sy
xiii
ص
s
ض
dh
ط
th
ظ
zh
ع
‘
غ
gh
ف
f
ق
q
ك
k
ل
l
م
m
ن
n
و
w
ه
h
ي
y
xiv
LIST OF ABBREVIATION
AC
Appeal Court
All ER
All England Report
Anor.
Another
BLR
Building Law Report
Cap
Capital
CJ
Court Judge
CLJ
Current Law Journal
Cox CC
Cox Criminal Cases
Cr App
Court Appellate
DPP
Deputy Public Prosecutor
FC
Federal Court
HL
House Lords
J
Judge
JP
Justice of the Peace Reports
xv
KB
King’s Bench
n.a.
No author
MLJ
Malayan Law Journal
Ors.
Others
P.B.U.H.
Peace be upon him
PP
Public Prosecutor
R
Rex
QB
Queen’s Bench
SCR
Supreme Court Reports
SLR
Singapore Law Reports
Sya
Syariah
Vol.
Volume
YA
Yang Arif
1
CHAPTER ONE: RESEARCH PROPOSAL
Background of the Research
It is the aim of law to serve justice to anyone who resorted to it. The denial of justice whether in enacting a law or its administration will defeat the purpose of the law and may bring society into unstable circumstance. From ages, jurists have been discussing the meaning of justice and how the law should be enacted to serve the meaning.
For the purpose of the study, a concern is to be made on serving justice for the victim’s family members for homicide case. They are the individuals who adversely affected from the tragedy - mentally and physically affected.
To mollify the family, a substantial law as well as procedural law need to be amended and enacted with the aim to cure the pain conjured by the tragedy.
One of the ideas is by the implementation of blood money law. Blood money is pecuniary compensation paid by the convicted person in homicide or hurt or abetment case to his victim, and the case of homicide, the family member of the victim. The objective is to serve justice to the most aggrieved part of the society – as law meant to secure the public interest – which is the family member of the victim. By that, the justice is more addressed than imposing the death penalty or paying the statutory fine exclusively into government fund.
Statement of Problem
2
Section 302 of Malaysian Penal Code provides death penalty as punishment for convicted person of murder. Then, Section 304 and 304A provides punishment for whoever commits culpable homicide not amounting to murder with imprisonment up to thirty years, and shall be liable for fines, or with both, depends on the element of crime committed by convicted, analyzed by the court. None of the sections is directly giving power to court to compensate the family victim under Penal Code. The purpose of criminal justice to seek justice for the public interest seems to undercut somewhere here. The author believes the reasons of the problem are the following:(1) A reconstruction of the suitable punishment is a must to search for a better punishment that gives real benefit to the public security and interest without jeopardizing the meaning of justice. It involves in depth study and research. Furthermore, the track of legal jurisprudence is not lacking from alternatives for homicide offence other than mandatory death penalty and expensive term of imprisonment supported by tax payer money.
(2) The dichotomy of criminal and tort litigation which prohibit the private claim resorted out of criminal trial. A second litigation need to be brought to the court by the affected parties and in this case, the family members of the homicide victim to compensate their lost. This means the justice for aggrieved victim’s family is not financially free and having quick result, though the criminal has been convicted as the first place.
3
(3) The lack in law to empower judges to give discretionary additional and/or alternative punishment, in example, to order compensation to be paid by the accused to the family of the victim after the conviction, will deny the justice of the family.
Retribution by its sole does not guarantee the pursuit of serving justice to the community achieves the adequate distribution of justice. (4) The strict and severe punishment of death penalty for murder case is come without alternatives in the case where if the convicted felon is the member of the family. It means rather than mollify the loss of one family member, the family need to face second loss if the killing was convicted by the court, rather than other additional and alternative ways of punishment being provided. Objective and Aim of Research
The objective of the research is to analyze the exhaustive punishment for homicide in Malaysia and relatively to propose the implementation of blood money system. It is also the aim of the research to serve as guiding material for society, members of Parliament, judiciary and law enforcement authorities for future proper administration of justice toward victim’s family member for homicide case who adversely affected by the killing of their family member.
Research Methodology
4
The method adopted in formulating this research is analytical. It will be conducted by examining and comparing between Malaysian current criminal justice system with the concept and law of blood money in administration of justice for family member of homicide victim. For the final, an understanding based on knowledge from modern and classical jurists will be suggested and recommended for the improvement of law, apart from reliance on statutes, reference books, articles, journal, decided cases and reported cases.
Literature Review
There are several articles and references written on this subject. Some of the article is very relevant to this research, while some of them are not directly connected to it but still can useful to support some part of it.
One of the significance element of blood money law is it acts as compensation to mollify the loss of the victim’s family. In an article written namely “Capital Punishment in Malaysia and Globally: a Tool or Justice or a
Weapon Against Humanity”1 by Dr Noor Muhammad & ors, a remark has been made that it is good to be aware that the current law can only offer death penalty for murder case but disregards the welfare of the family members.
They are the ones who commonly depend on income of the deceased. The article emphasizes also on how appropriate to have system where widow with several children can receive temporary support by an order of blood money by the competent court. The article however only covers in surface and particularly to support the alternative punishment in lieu death penalty.
1
[2012] 1 LNS (A) XX
5
To implement the blood money law, numbers of written laws need to be amended. In the book namely “Administration of Islamic Law in Malaysia” by Farid Suffian, the book particularize the affected laws that should be enacted, amended and gazette to implement Islamic law, and for the purpose of this research, the Diyat law. However, it focuses on total reformation of the whole system of law – from secular to full fledge Islamic administration of justice. It is to be noted, that the process would take a long journey and political will. It is important to note that political will is so often attributed to manipulation as well as speculation. Thus, a moderate and intermediary approach is an appropriate introduction to test and to work on the compatibility of our law system with Syariah, for a long term benefit – since the focus of the research is particularly to start the ambition with systematic compensation to victim’s family member.
It is clear that except by the way of double litigation, there is no legal right under any laws in Malaysia for victim’s heirs to get compensation out of a criminal trial. In book of Pentadbiran Keadilan Jenayah di Malaysia written by Roslan Mat Nor and Zamani Haji Sulaiman, the writers lays down the current punishment of criminal justice in Malaysia. In addition, reference also being made to a book namely “Criminal Procedure” written by Francis Ng Aik
Guan. As expected, none of the punishments alternatively allow pecuniary compensation to be order by court to mollify the victim family in a single trial except under inadequate practice of section 462 of Criminal Procedure Code.
Moreover, the latest amendment on section 462(1A) was not included under the discussion. Thus, it gives the clear view to what extent that how the current
6
criminal justice court is able to bring justice to the family member of homicide victim. Such lacuna leaves the victim’s heir with no justice other than retaliation element by the way of mandatory death penalty sentenced on the convicted felon. In an article written by Dr Syed Ahmad SA Alsagoff namely
“Victim Compensation For Homicide For All Malaysian”, the writer wrote about the outcry of the society particularly the aggrieving family of the deceased who left uncompensated in the current criminal law framework. He talks about the origin of the blood money system as an opposite to the archaic dichotomy of criminal and tort for an offence against the person derived from classic jurisprudences. He shows a parallel understanding of most monotheism teachings in accepting the concept of blood money as the true way and proper addressing of justice to the law abiding citizens. He does reiterate on mechanism of implementation of the concept without specifying particular laws need to be changed or enacted. Lastly, he suggest that the implementation should be made in plural system of law but in singular form, covering both
Muslim and non-Muslim citizen based on his reading on Malaysian multicultural environment.
The Scope and Limitation of the Research
This research covers only the arguable justice behind the archaic dichotomy of criminal and tort law for homicide case, the exhaustive legal provisions applicable in Malaysia and to what extent such provisions provides justice and benefits the victim’s family member. Likewise, the research will only cover the implementation of blood money law in Malaysia legal system.
7
The discussion on other Syariah criminal laws such Hudud, Qisas and Taazir will be excluded from the main discussion. This is because of the limitations this research has, and Hudud, Qisas and Taazir are so wide to the extent that this research cannot accommodate them all.
Furthermore, it looks into the applications of blood money in implementing states and differences between this application and current
Malaysian legal system. Finally, suggestion and recommendations are made for solving the problem of implementing blood money law.
8
CHAPTER TWO: INTRODUCTION
Justice as the Aim of Any Law
Justice is the utmost aim in legal administration. There is argument between analytical jurisprudence and normative jurisprudence pertaining to what is the meaning of justice. The former jurist reiterates on how the administration of justice conforms to laws enacted by socially-accepted lawmakers, whilst the latter stands that the virtue of justice is a norm above of any law and conforms with holy books, intellectual reasoning and origin of nature, understandable by reasonable human beings, worldly accepted by human communities, as Aristotle said, “the unjust law is not the law”.
Despite of this difference, both even every jurist of legal theory agree that the law must be something that is accepted by the society, enacted by the majority, or decreed by their representative, to serve and to protect the society after they had given their loyalty and obedience, or by assurance through their contribution in the form of paying taxes. Failure to serve the community by becoming injustice will render the authority being overthrown by democracy or by revolution or by other means as the signals for such social rejection because of such unjust law.
According to H.L.A Hart in his famous book The Concept of Law, while he wrote about the concept of justice, he said:
“One is when we are concerned not with a single individual’s conduct but with the way in which classes of individuals are
9
treated, when some burden or benefit falls to be distributed among them. Hence what is typically fair or unfair is a “share”.”2
According to Justinian, justice is the virtue which results in each person receiving his due, by producing excellent, definite and good result.3 Aristotle in Nicomachean Ethics interprets justice as giving one what is due to him and giving one what is his own. 4 Ulpian also reiterated that the basic precepts of the law is: ‘honeste vivere, alterum non laedere, suum cuique tribuere’, which roughly means that the law should cause one to live honestly, not to harm another and to give to each person his or her due.5
The same principle is upheld by Islam. It is considered as ‘Amanah
(trustship) to distribute the justice to the appropriate parties. Allah SWT says in al-Quran:
ِ
َِْ
ِ ْإن اللَّه يَأْم ُكم أَن تُؤ ُّوا اْلَمانَات إِلَى أَهلِها وإِذا حكمتُم بَ ْين النَّاس أَن تَحكموا بِالَْع
َ ْ َّ َ ُرُ ْ ْ َ د
ُُ ْ ْ ِ َ ْ َْ َ َ َ َ ْ
ِ
ِ َ َ َّ ِ ُ ِ َّ ِ
َّ
ًإِن اللَّهَ نَِعما يََعظُكم بِه إِن اللَّهَ كان سميَعاً بَصيرا
َ
ْ
Indeed, Allah commands you to render trusts to whom they are due and when you judge between people to judge with justice. Excellent is that which Allah instructs you. Indeed, Allah is ever Hearing and Seeing.(Surah al-Nisaa’:58)
2
Hart, H.L.A. 1997. The Concept of Law. New York: Oxford University Press Inc. 2nd ed.
p.158.
3
Haswira Nor Mohamad Hashim & Anida Mahmoor. 2009. Law, Morality, Justice, Freedom and Equality: The Underlying Concepts. Malaysia: McGraw-Hill. p. 98.
4
Prof. Hari Chand. 2011. Modern Jurisprudence. Petaling Jaya: International Law Book
Services. p. 257.
5
J.H. Farrar & A.M. Dugdale. 1990. Introduction to Legal Method. London: Sweet &
Maxwell. p. 259.
10
Justice or ‘adl in arabic term also means placing something in its rightful place.6 According to al-Sarakhsi, justice is ranked as the most noble acts of devotion next to belief in Allah; it is a greatest of all duties entrusted to the Prophets.7 Hence the justice is something that should be shared by the society. The implementation of certain laws should strive on basis of social distribution of justice’s share, if we can say like that. The very meaning of justice is to be shared not in an equal proportion for each respective class, as the discrimination is not to “treat like cases alike”, but to restore via unique leftovers of damage caused by a crime or wrongdoing against the members of society. The Nature of Justice in Homicide Case
From the above deduction, we are now applying in discussion of proper sanction for homicide case, particularly the murder case. While determining the punishment of the murderer, 5 classes of justice need to be addressed. They are for:
1. Deceased victim
2. The murderer him or herself;
3. The family members of the victim or deceased.
4. The society of which the murder happened.
5. The government of which is elected by the society.
By looking to the current situation in Malaysia, the punishment for murder case is imposed either in substantial term of imprisonment, fine and death
6
Mohamamad Hashim Kamali. 1999. Freedom Equality and Justice in Islam. Petaling Jaya:
Ilmiah Publisher Sdn. Bhd. 140.
7
Ibid. p. 147.
11
penalty. In countries who practice mandatory death penalty, they claim justice had been served if they put the murderer on the death row. By such sentence, the justice for victim is upheld by retaliation, for victim’s family by the same mean, for society by protection and notification that a punishment had been sentenced, and for government that its integrity and respect gained by administration of public needs.
However, mandatory death penalty does not really served justice accordingly, as asserted by at least two side of progressive legal movement.
First, the movement of abolishment of capital punishment is condemning the any means of law to deprive the sanctity of human life. Even the European
Union had decreed that to participate and enjoin with their fraternity, a country must abolish death penalty in its legal system. Secondly, the Islamist movement at all-time strive with the fullest effort to justify the wisdom of blood money provided in al-Quran and As-Sunnah as quasi-judicial right of victim’s family in determining the sentence for the murderer.
The latter is the author current concern. The right to compensation of victim’s family member is the mechanism of justice for the part of society which is most adversely affected by the tragedy. In addition, in Islamic criminal justice, death penalty is not a mandatory in nature. This somehow in some degree conforms to the agenda to abolish capital punishment as the alternative and additional punishments are enacted to deal with murder cases.
Islam protects the public interest by giving the right to determine punishment for murder case offender in the hand of victim’s heirs. Hence, the
12
role of court is only to decide whether the offender is guilty of murder offence.
The heirs can choose the following alternatives punishments:
1. Imposing capital punishment; or
2. Accepting diyat (blood money); or
3. Pardoning the convicted.
Another issue to discuss here is in Islam originally the murder case is decided in single litigation process. It opposes the current situation that requires double litigation because of archaic dichotomy of crime and tort law. This is an ineffective pursue of justice since the mourning family had to bear financial burden in private suit for a compensation that yet to be guaranteed.
It is suggested as in practice of European inquisitorial mode of trial, any person who has legal interest in a murder case, for example, the family’s victim could ask for the compensation right after a conviction is decided by a judge. We also should be noted by the provision of victim’s impact statement recently added into our legal system; a statement of family’s victim can be taken to consideration to determine the sentence of the convicted offender in murder case.
Archaic Dichotomy of Crime and Tort
In Islam, the right to sentence capital punishment is not vested in judge neither in Yang di Pertuan Agong or Rulers of States, which totally different from what has been practicing today in Malaysia legal framework. What we are practicing today is the effect of rise of kingship and the organization of
13
royal courts led to the eventual change of homicide from a wrong remedied by compensation to the victim’s family, to a crime punished by the state with death, imprisonment or fine. This transformation despondently resulted in the loss of the victim’s family right to compensation.
Dated back to the original position for homicide case, killing a person is considered as a wrong payable rather than a crime. It covers all type of killing either intentional or unintentional. The law was looking to the external act rather than intention This is not only derived from Islamic law perspective.
It is also derived from Anglo-Saxon and Germanic communities. However, by the influence of clerical judge of the churches, that in the case of unintentional killing, the slayer paid no compensation to the kin of the victim for their forgiveness. The church had placed greater reliance on the evil inclination of the offender.
In the end, the King claimed the whole sum payable with the result that the law regarded the act that engendered the liability to make payment as a wrong to the sovereign. The fact is ever was a wrong to the subject sank into oblivion. Punitive justice superseded civil jurisdiction; the tort had merged into the crime. The victim’s family has to see the matter as someone else’s business. It then led to double litigation. The court will consider the case in separate proceedings, criminal and tort case, placing another unguaranteed outcome for the family of the victim, especially when it comes to admissibility of evidence and finding adduced in criminal case whether it can be readmit for
14
the benefit of the tort case and to high possibility of lengthy administration for a private suit. 8
This apparently was result of class struggle between rulers and the people as proposed by the jurist, John Stewart Mill. The rulers wanted an upper hand to govern and control the people and the people on the other hand wanted to get out of the clutches of the rulers.9 At the demise of people liberty, the rulers may demand the control over the people interest even to the extend by clothing their political judgment with religion and crooked value of morality in favour of them. This is of which in this current context the right of the victim’s heirs to get compensation out of homicide case.
8
Alsagoff, Syed Ahmad S.A. 2006. Al-Diyah as Compensation for Homicide and Wounding in Malaysia. Kuala Lumpur: International Islamic University Malaysia (IIUM). p.92-93.
9
Prof. M.R. Zafer. 1994. Jurisprudence: An Outline. Kuala Lumpur: International Law Book
Service. p. 77.
15
CHAPTER THREE: EXHAUSTIVE PUNISHMENT FOR HOMICIDE
UNDER MALAYSIAN LAW AND ITS EFFECTIVENESS
The author divides this chapter into two parts;
1. Firstly, provision of homicide in Act 574 of Penal Code of Malaysia
2. Secondly, provisions in Act 593 of Criminal Procedure Code of
Malaysia and relevant cases law.
Provision of Homicide in Act 574 of Penal Code of Malaysia
The definition of murder is stated in section 300 of Penal Code. The section reads as follows:
Except in the cases hereinafter excepted, culpable homicide is murder— (a) if the act by which the death is caused is done with the intention of causing death;
(b) if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused;
(c) if it is done with the intention of causing bodily injury to any person, and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or
16
(d) if the person committing the act knows that it is so imminently dangerous that it must in all probability cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death, or such injury as aforesaid.
To understand the definition better, Penal Code has provided illustrations afterward. Basically, it is an intentional or premeditated killing, of which if one is found guilty thereof he will be liable to death penalty. The punishment for murder is death, as provided for under section 302 of the Penal Code.
Next, the definition of culpable homicide is provided under section
299. It reads as follows:
“Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide” It is crucial to note the definition of culpable not amounting to murder is provided under section 299, because generally a killing is a culpable homicide and murder is a kind of that homicide, that is why section 300 starts with “Except in cases hereinafter excepted, culpable homicide is murder”.
Meaning to say section 300 is a species and an exception to section 299.10
10
Shamrahayu Bt. Ab Aziz. 1993. Law of Murder: A Comparative Study of Malaysian Law,
English Law and Islamic Law. (Master Thesis). Petaling Jaya: International Islamic University
Malaysia. p. 2.
17
The punishment for culpable homicide not amounting to murder as provided under section 304 is as follows;
a) Imprisonment for a term which may extend to twenty (20) years, and shall also be liable to fine, if the act by which the death is caused is done with intention of causing death, or of casing such bodily injury as is likely to cause death: or
b) imprisonment for a term which may extend to ten years or with fine or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.
Afterward, Penal Code provides under section 304A the offence of causing death by rash or negligent act not amounting to culpable homicide. The punishment for such offence is imprisonment for a term which may extend to two years or with fine or with both.
Provisions in Act 593 Of Criminal Procedure Code Of Malaysia
Despite the list of punishment set for homicide case as provided under
Penal Code, and apart from claim made out of private suit by affected party from a homicide case, it is a surprise finding where provision of section 426 of the Criminal Procedure Code gives the court power to grant compensation to any person or the representatives of any person injured in respect of his person by any crime or offence.
In addition, section 173A(3) of the same Code, provides where the court has power to order the offender to pay such compensation for injury or
18
for loss (not exceeding the sum of fifty ringgit). These sections of law have impressed the author to further explore how exhaustive our criminal justice practices had served the justice for the victims of homicide case or their family members. Unfortunately, cases decided under section 426 were in scarcity yet the relevant case of homicide is PP v Low Lu Keng.11
It was an interesting development case in 1992. A High Court in
Malaysia made an unprecedented criminal compensation order for homicide in the unreported case of PP v Low Lu Keng. The Respondent faced the charge of committing the offence of culpable homicide not amounting to murder punishable under section 304 of the Penal Code. He was 19 years old at the time of the incident. He pleaded guilty. Upon conviction the court released him on RM10,000 bond with one surety under section 294 of the Criminal
Procedure Code (First Offender). The Deputy Public Prosecutor appealed against the sentence to the High Court. The High Court confirming the sentence passed by the Lower Court ordered that the respondent pay a sum of
RM 10,000 as compensation to the widow of the victim under section 426 of the Criminal Procedure Code.
The Malaysian court’s decision in PP v Low Lu Keng was a novel development for four reasons as follows:12
a) It is in conformity with Islamic law of diyah that provides compensation for victims of homicide.
11
Muar High Court Criminal Appeal No. 42-8-1990. Alsagoff, Syed Ahmad S.A. 2006. AlDiyah as Compensation for Homicide and Wounding in Malaysia. p.98.
12
Ibid. p. 102.
19
b) It was a decision by a non-Muslim judge against the respondent, a nonMuslim to pay compensation to the victim’s wife, also a non-Muslim.
c) The respondent paid the sum of RM 10,000. As he was only 20 years old at the time of the appeal, one wonders whether the money came from his or his parents. If it was from his parents, which appears to the case, it conforms to the Islamic law of diyah that for homicide not amounting to murder, the Aqilah (relatives) of the accused shall bear the responsibility of paying the compensation due.
d) The decision had resulted in the victim’s family having to attend only one trial to obtain redress. The court’s award of compensation the victim’s family avoided double litigation.
Recently, The Criminal Procedure Code (Amendment) Act 2010
(Amendment) Act 2010 came in the spirit of resolving the backlog of cases and promoting speedy trials, which is a reflection of the Government
Transformation Programme. It comes with new amendment on section 426 by adding subsection (1A). This new provision requires the Court, if the Public
Prosecutor applies for, to order the convict (or the parent or guardian, in case of a child convict) to pay monetary compensation to the victim or the deceased victim’s family. In assessing the quantum of compensation, the Court is empowered to hold an inquiry, and specific particulars must be considered including expenses and losses (including loss of income) suffered by the victim, and the convict’s financial capability to meet the compensation.13
13
Abu Daud Abdul Rahim. 14th January 2011. “Do We Have a New Criminal Procedure
Code?”. Criminal Law. http://www.malaysianbar.org.my/criminal_law/do_we_have_a_new_ criminal_procedure_code_.html 20
The author hopes that this new amendment would not be read conjunctively with section 173A(3) which only allows compensation to be paid to the injured party not exceeding RM50.00. This if it is happening would defeat the objective of the amendment and requires another amendment to section 173A(3) to refurbish the purpose. Therefore, the sections need to be interpreted disjunctively to secure the aim to compensate the victims of the crime and for the purpose of this study, the victim’s family of the homicide case. Effectiveness of Punishment for Homicide Case
In the current process of administration of criminal justice, when the commission of crime is reported to the police, a search is made for the perpetrator of the crime and prosecution sets into motion to get the accused convicted. In the process of trial the accused is considered a privileged person; he is accorded constitutional protection against illegal arrest and detention and is provided all possible help and legal aid. For example;
a) Article 5(1) of Federal Constitution provides that no person shall be deprived of his life and personal liberty.
b) Article 5(3) of the same law provides when a person is arrested he shall be informed as may be grounds of arrest and shall be allowed to consult and be defended by a legal practitioner of his choice.
c) Section 255 of Criminal Procedure Code deals with the right of legal representation at the trial stage.
21
Furthermore, the prevailing criminal justice seems to focus on reforming and rehabilitating offenders and every care is taken for the wellbeing of offenders while undergoing punishment. For example, The Prison Department of
Malaysia spends RM35 per prisoner per day.14 The system, however, hardly takes notes of victims of crime.
The victims of crime, apart from having to accept the punishment as avengement for the killing, is only required to their presence as witnesses. The plight of the victims is largely ignored. The victims here covering all person injured by the crime occurred. In most cases, the victims suffer injury, harm or death as a result of crime committed on them and the may incapacitated the victim temporarily or permanently to earn their livelihood or in the case of death the breadwinner is lost. Unfortunately, the state provides no help to the victim or his defendants; they are left to their deficient resources.
Although section 426 of CPC and some other statutes where empower the court after sentence has been passed to order compensation to victims of crime to be paid, there still no legal right for the victims or his dependents to claim compensation; it is a discretionary power of court. In addition, cases decided under such section is inadequate and provisions enacted for such purpose are meager and not comprehensive. The power also provides as additional sentences not as alternative sentence which may not prevent unnecessary bloodshed in the conviction of murder except by commutation of punishment granted by Yang di-Pertuan Agong or the Ruler of States.
14
Dr. Mohammad Akram. 2008. “An Approach To The Victims of Crime in Malaysia”.
(Paper). 5th Asian Law Institute Conference. Singapore. 22-23 May. p. 1.
22
Except by this frustrating condition, it is important to be noted that our criminal law system was built with the mixed theories of jurisprudence. It does not stand by a singular way of interpreting the justice and this is truly a good situation. Within the framework of democracy, any party with interest may advocate his idea into the judiciary even into the parliamentary to reshape the future law practicing. The same goes to the aim of this study.
At this very point, we have already witnessed that the right to compensate by victim’s family in homicide case was not totally rejected by our criminal law system. Section 426(1A) and section 173A provides power to court to order like an inquisitorial judge for compensation for victims and their family member by the court discretion. In the spirit of capital punishment movement upholding the sanctity of human life as well as the realistic and practical Islamist movement, justice for the victim’s family for all homicide cases especially the intentional murder shall begin to enshrine at the dawn of democratic system and universal human right.
23
CHAPTER FOUR: PRACTICE OF BLOOD MONEY LAW IN
HISTORY AND CURRENT
Blood Money Law in History
The implementation of blood money was widespread in the law of ancient communities. Homicide at the back was not seen as a crime against the state but as a tort or wrong against the victim’s family. This concept even for many centuries was an established practice in the field of criminal justice but was not given due attention in the present criminal justice system. . The followings are some example of traces of ancient documents providing the practice around the globe;15
a) In the Old Babylonian Kingdom of Eshunna in Upper Mesopotamia, blood money for the death caused in an affray was 2/3 mina silver.
b) In the Old Testament, it is duty of the next-of-kin to avenge the death of his slain relative.
The Numbers, 35:
“... or if in enmity he falls upon him with his bare hands and he dies, then the assailant must be put to death; he is a murderer. The next-of-kin is to put the murderer to death because he attacked his victim…”
c) In The Bible, for retaliation is provided three places in the Pentateuch:
a. Exodus xxi:
15
Alsaqoff, Dr Syed Ahmad SA. 2009. Victim Compensation For Homicide For All
Malaysians .[2009] 6 MLJ cxx. p. 2.
24
“…But where injury ensues, you are to give life for life; eye for eye, tooth for tooth, hand for hand, foot for foot;burn for burn, bruise for bruise, wound for wound…”
b. Leviticus xxiv:
“…If one person strikes another and kills him, he must be put to death…” c. Deuteronomy xix:
“…You must show no mercy; life for life, eye for eye, tooth for tooth, hand for hand, foot for foot…”
d) In al-Quran, it testifies the above laws for children of Israel;
Al-Maidah, 45:
“…We ordained therein for them: Life for life, eye for eye, nose for nose, ear for ear, tooth for tooth, and wounds equal for equal…”
The implementation of blood money law was not only enshrined in Abrahamic religions but established as well in other religions and ancient civilization. Dr
Syed Ahmad SA Alsagoff says;
In ancient Greece, the law of Charondas, which constituted the common law of Greece, treated wrongs to individuals as torts and laid down an elaborate scale of compositions.
In ancient China, retaliation by the victim's family was familiar to ancient thinkers. Mencius once remarked:
25
“..From this time forth I know the heavy consequences of killing a man's near relation. When a man kills another's father, that other will kill his father; when a man kills another's brother, that other will kill his elder brother. So he does not himself indeed do the act, but there is only an interval between him and it…”
The content and structure of the Tang Code (enacted in AD 653) became the model for codes of later dynasties. In the codifications of subsequent dynasties, the major legal penalties were the traditional five punishments, that is, the wu-ching. Death was the first of the five penalties. From as early as the Han Dynasty (600 BC), the punishment for a murderer in China was execution.
The law of feudal China largely influenced the oldest Code of Japan, the Tai-ho ritsu (AD 701). The Code regarded murder of a near blood relation or a near relation by marriage and murder attended with certain aggravating circumstances as atrocious crimes and expressly prohibited composition.
In Hindu law, aggravated forms of murder alone were capital crimes.
According to Manu, the killing of a man without circumstances of aggravation carried a fine equal to that for theft and according to
Yajnavalkya, homicide incurred the highest or the lowest amercement, depending upon the social position, character, conduct of the victim and other similar factors.
26
In Europe, between the fifth and the ninth centuries, legal codes were already in existence in the Germanic barbarian kingdoms and early medieval states. By the 17th century, the Lombards21 had expressly prohibit-ed blood-feud called faida and replaced it with a system of wergelds and compositions contained in the Lombard
Code (Leges Langobardorum). The Edicts of King Rothair (AD 643) provided that in the matter of composition for blows and injuries that were inflicted by one freeman on an-other freeman, composition was to be paid according to the procedure provided, the blood-feud being out-lawed. The Germanic barbarians' approach to violence was by enacting specific offences entailing specific penalties payable in recompense to the injured party. The Lombard Code contained a long tariff of compositions payable for very diverse physical injury.
Their approach to the offences committed against the individual or family was to placate the injured person or family (and thus averting the blood-feud), and not the punishment of the offender. The notion that of-fences against individuals might also be offences (crimes) against society had not yet appeared. The question was
not one
of punishment but of equal recompense for a loss suffered.
The Lombard Code, especially the Edicts of King Rothair, differentiated the amount of composition payable according to the social status of the victim. For the murder of a freeman, the wergeld
27
was one hundred and fifty solidi while a person 'of the first class' had a wergeld of three hundred solidi'.
The Lombard Leges used the Latin word 'homicidia' in the sense of both homicide and murder; although it sometimes further described murder as 'secret homicide' or morth. For murder, the offender must pay the wergeld of the murdered man plus a fine of nine hundred solidi. The taking of blood revenge after the payment of the wergeld composition required the payment of double the wergeld.
In the medieval law of England, the victim had the right to avenge himself against the offender. The slaughter of one by a member of another has been the sign for a blood-feud.
Pollock and Maitland mentioned the disposition of some writers in believing that the Anglo-Saxons vigorously prosecuted blood-feuds and there was a right of blood-feud where the slayer and his kinsfolk had made default in paying the dead man's wergild, the statutory sum that would atone for his death. Other writers spoke of an age when the law allowed the injured kin the option of taking money or taking blood. There was no doubt that the earliest laws of England set a price on life. It was clear that blood money played an important role in Anglo-Saxon law. In the words of Kemble:
Under Anglo Saxon law, a sum was placed on the life of every free man, according to his rank, and a corresponding sum on every wound that could be inflicted on his person, for nearly every injury
28
that could be done to his civil rights, honour or peace; the sum being aggravated according to adventitious circumstances. Like other ancient communities and the Anglo-Saxons in the times when bloodfeuds reigned in England, the pre-Islamic Arabs took vengeance upon the murderer if possible, or else they took revenge by killing any innocent person belonging to the murderer's clan.
The pre-Islamic Arabs based this system of revenge killings upon the understanding that a tribe was responsible for all unlawful acts committed by any individual member of the tribe. On this basis, the wali (next-of-kin) of the victim sought revenge from the offender and all members under the protection of the offender's tribe. The whole tribe and its chief make the retaliatory decision since they considered the killing of one of their members an insult to the honour of the whole tribe. For the sake of the tribe's honour and solidarity, any member of the victim's tribe could retaliate against any member of the slayer's tribe.16
The above lists of laws pertaining to blood money law were intended but to emphasize how established the law was and accepted by the world community of various civilizations and religion. The dichotomy of crime and tort in homicide was a legacy of British administration that woeful to mourning family victim. As has been stated in the Chapter One, homicide then treated as a wrong against the Crown, entitling the state with the fine but depriving the right of victim’s family to get compensation in single litigation.
16
Ibid. p. 3-4.
29
Blood Money Law in Current Practices
The blood money law is not existed but with long trait of practice. It is however practiced and influenced by several factors particularly based on how the legislators understand the concept of blood money. As has been mentioned earlier, the concept is not practiced only by Islamic countries but also otherwise. However, for the purpose of this topic, the author will make the comparison between several Islamic countries who applied blood money law in their system as well as with some commentary.
In Saudi Arabia, the format for the payment of blood money in homicide is as the following scheme17:
Table 1: Calculation of Diyah
The Price of a Full Diyat
Victim
1.
100,000 riyals
Muslim Man
2.
50,000 riyals
Muslim woman
3.
50,000 riyals
Jewish and Christian Man
4.
25,000 riyals
Jewish
and
Christian
woman
5.
6,666 riyals
Any other religion (Man)
6.
3,333 riyals
Any
other
religion
(Woman)
17
n.a. 1 of June, 2013. “Settlement Of Death Compensation Claims”. Death Cases Of Indian
Nationals.http://web.archive.org/web/20110724130457/http://www.cgijeddah.com/cgijed/Wel
fare/ deathbooklet.htm.
30
In Pakistan, under section 323 (1) of the Pakistan Qisas and Diyat
Ordinance, 1991 “PQDO 1991“ fixed the minimum value of diyah at one hundred and seventy thousand and six hundred and ten rupees (Rp170,610). It is the value of 30.630 kilograms of silver. The court shall keep in view the financial position of the convict and the heirs of the victim. The government has obligation to announce in July of each year the price of silver by notification in Federal Gazette. This is accordance to section 323 (2) of PQDO
1991. 18
In Sudan, under section 42(1) of the Criminal Act 1991 it provides that diyah is one hundred camels of different ages or its equivalent value in money.
The chief Justice has the discretion to determine its value after consultation with the competent bodies. In Iran, under section 3 of Chapter on Hudud and
Qisas Act it provides for diyah to be payable by the way of camels, cows, sheep, garments, dinars and dirhams. The offender can pay by way of any of the abovementioned without to mix them up. 19 On the other hand, in Clause 2 of the Kelantan Syariah Criminal Code (II) Enactment, 1993 a diyah is equivalent to the prevailing price of 4,450 grams of gold or such sum as may be fixed by His Royal Highness or the Sultan according to Syariah Law.20
As the conclusion, the price of diyat is different from one country to another. This is because of the different interpretation of Syariah text from
Prophetic traditions but still with the adherence to follow the supremacy of asSunnah. Thus, this divergence is not really material. In respect of
18
Alsagoff, Syed Ahmad S.A. . Al-Diyah as Compensation for Homicide and Wounding in
Malaysia. p. 188-189.
19
Ibid. p. 189
20
Ibid. p. 190.
31
implementation in Malaysia, the government may from time to time reassess the amount the compensation by reconciliation among the department of government particularly which under Attorney General Chambers, Department of Syariah Judiciary (JKSM) and National Fatwa Council (NFC).
Real Cases Study
It is important to note that no law comes without attacks on its virtue, concept and implementation. The reason of criticism is numerous. Some of it is due to emotional stigma and some of them are pure academic commentaries.
The critics are also from every group who concern with the implementation of justice. Thus, in the followings, the author cited some of real cases happening in Saudi Arabia which got worldly concern about the concept blood money law. In 1998, there was a case of murder on Yvonne Gilford who was murdered by Parry admitting having being the murderer and McLauchlan an accessory (though both subsequently claimed to have been coerced into signing the confession), and Parry was initially sentenced to death by beheading, and McLauchlan to eight years' imprisonment and 500 lashes.
Parry's sentence was reduced to life imprisonment after Gilford's elder brother
Frank accepted a "blood money" payment of approximately £750,000. 21 By the commutation of personal intervention of King Fahd, the death penalty has been commuted to time served in prison. This is the first case of execution of western woman in Saudi Arabia by the law of blood money. As a reflect to
21
n.a. 15th October, 1997. “Deal would have 'compensation' going to charity”. Money, not death, sought in murdered nurse case. http://edition.cnn.com/WORLD/9710/15/Australia
.nurse/
32
this study, this can be a model of plural administration of compensation covering the non-Muslim to victims of the crime to get involve in sentencing the convicted person and to get compensation to mollify the feeling of the heir of the victim. However it is to reserved that in Saudi Arabia they follow the school of Hanbali which does not recognize equality of life between a nonMuslim and a Muslim which is as far as this study is concerned, there should be plural administration especially on multicultural society in Malaysia.
In 2000, a Filipino man was sentenced to be beheaded for causing a murder of one Saudi men. He defended his action with self-defence as he said tried to sexually abuse him. However, the court rejected the defence. Then, he was detained in Dammam Jail in Saudi Arabia waiting for his sentence. This has sparked a world campaign for payment of blood money. Finally, the victim’s heirs had agreed the tanaazul (to accept blood money) and accepting for about 3 million Saudi Arabian Riyal (about $800,000) as the compensation.22 In correspond with study at hand, this shows that the payment of blood money is flexible and can be bore by any institution who want to save the convicted from the death penalty. This is also shows that the government will commute the death sentence subject to victim’s heir issuance of tanaazul.
There are also societies and movements who advocate the victim’s family to accept the blood money in lieu of death penalty to avoid unnecessary blood spill. 22
n.a. 29th May, 2013. “OFW on Saudi death row forgiven by victim's heirs – Binay”. Global
Filipino.http://www.abs-cbnnews.com/global-filipino/05/29/13/ofw-saudi-death-row-forgivenvictims-heirs-binay.
33
Next, in 2012 there was news on a girl had been killed after being sexually abused by her own father also was happened in Saudi Arabia. The activists said that the judge had ruled the prosecution could only seek "blood money and the time the defendant had served in prison since Lama's death suffices as punishment". Three Saudi activists, including Manal al-Sharif, who in 2011 challenged Saudi laws that prevent women from driving, have raised objections to the ruling. The ruling is based on national laws that a father cannot be executed for murdering his children, nor can husbands be executed for murdering their wives, activists said.23
In relation with study at hand, here the responsibility of the local government to impose adequate punishment to the father is at concern. To keep the social order and remove threat in the society, the government may impose corporal punishment or longer time served in prison. This is under the discretion of the judge under the law of Taazir. Another issue is pertaining to exception to punishment of retaliation when the killer is the father of the victim. It is the opinion of Imam Abu Hanifah, Imam Shafie and Imam Ahmad that the ruling is such so base on the hadith of the Prophet SAW who said, “A father shall not be punished with retaliation for causing death of his son”. The same also apply of a daughter.
However, according to Imam Malik this is only when a father with the intention of reforming his offspring but causes death of his offspring he shall not liable to punishment of death. Otherwise, if in absent of intention of
23
n.a. 4th February, 2013. “Saudi blood money ruling angers activists”. Middle East. http://www.aljazeera.com/news/middleeast/2013/02/201323223618362435.html. 34
reformation, he shall be liable to the punishment of retaliation. 24 Nevertheless, it is up the living heirs of victim to assist the judge to sentence the convicted murderer or to pardon him as they are the most affected group in society other than the public at large.
Another criticism is pertaining to racial discrimination in Saudi Arabia.
This had caused unfair perception toward its criminal legal system which will affect the whole framework of Islamic criminal justice if we intended to implement outside current practicing country. There is no much good will to be held out forward. In the case of Ruyati binti Sapubi, was beheaded with a sword on Saturday after confessing to murdering her boss as the Indonesian government also failed to get tanaazul (clemency) for her case. Indonesian media reports said she attacked her boss with a meat cleaver after being denied permission to return home.
It is in about 1.5 million Indonesians work in Saudi Arabia - many of them as domestic maids. Anger and outrcy has been growing in recent years over the treatment of migrant workers - particularly maids, who often complain of mistreatment.25 The same happened in the case of the execution of
24-year-old Rizana Nafeek of Sri-Lankan origin, has cast a spotlight on the plight of dozens of migrant workers on death row in Saudi Arabia. Nisha
Varia from Human Right watch said the Saudi justice system is characterised by arbitrary arrests, unfair trials and harsh punishments. She added migrants are at high risk of being victims of spurious charges. A domestic worker
24
Prof. Dr. Anwarullah. 2008. The Criminal Law of Islam. Kuala Lumpur: A. S. Noordeen. p.
76.
25
n.a 21st June, 2011. “Saudi Arabia in Indonesian maid beheading row”. News Asia-Pacific. http://www.bbc.co.uk/news/world-asia-pacific-13860097. 35
facing abuse or exploitation from her employer might run away and then be accused of theft. Employers may accuse domestic workers, especially those from Indonesia, of witchcraft. Victims of rape and sexual assault are at risk of being accused of adultery and fornication.26
So far as the criticism is concern, the attacks were only the administration of justice in countries implementing blood money law. It is not the blood money itself has been criticized. The Saudi should be more aware about the human right of every citizen including the foreigner.
27
Nevertheless, if
collateral issues are not dealt accordingly, it may politically jeopardize the very virtue of blood money law and accusing implementing such law to be a neo-colonization and extremism. One of the aim of this study is necessarily to cleanse the spoilt perspective of world community toward blood money law. It is up to now using the word “diyat” or “blood money” but replacing with more harmonious name of law but keeping the divine justice at the upper place.
26
Chamberlain, Gethin. 13th January 2013. “Saudi Arabia's treatment of foreign workers under fire after beheading of Sri Lankan maid”. The Observer. http://www.guardian.co.uk/world/
2013/jan/13/saudi-arabia-treatment-foreign-workers
27
Sherry, N. Virginia. 2004. Saudi Arabia: Bad Dreams, Exploitation and Abuse of Migrant
Workers in Saudi Arabia. New York: Human Rught Watch. p.14.
36
CHAPTER FIVE: IMPLEMENTATION OF BLOOD MONEY LAW
Murder in Compatibility with Malaysian Penal Code.
For the purpose of this study, some comparisons need to be conducted between the above statutory definitions of homicide from Malaysian Penal
Code with English Law and Islamic Law, apart from the definition of homicide under Penal Code of Malaysia had been early define in Chapter
Three. The comparison is important to show the compatible and harmonious origin of these three systems to ensure the suggestion and recommendations on punishment for homicide, tabled at the end of the study, are relevant and applicable in Malaysia.
(i) English Law’s Definition of Murder
Definition under English Law is not statutory but a crime at Common
Law. The classic definition of murder is that of Coke:
“Murder is when a man of sound memory and of the age of discretion, unlawfully kills within any county of the realm and reasonable creature in rerum natural under the King’s peace, with malice for thought, either expressed by the party, or implied by law, so as the party wounded, or hut etc. die of the wound, or hurt etc within a year and a day after the same.” 28
If we analyze such definition, we could find:
28
Edward Coke, Milite JC, Cike Institues, Part 3 &4, page 193. Shamrahayu Bt. Ab Aziz.
1993. Law of Murder: A Comparative Study of Malaysian Law, English Law and Islamic Law.
p. 4.
37
a) Who can commit murder,
b) Where murder can be committed,
c) Who can be the victim,
d) Death within a year and a day
e) Malice aforethought
(ii) Islamic Law’s Definition of Murder
According to the majority of the jurists murder in Islamic criminal law is of three kinds, namely;
i.
Intentional murder
ii.
Quasi-intentional murder
iii.
Murder by mistake
Imam Malik is of the view that murder is only two kinds, removing quasiintentional murder from the list. Imam Abu Haneefah opines that murder is of five kinds, adding (i) Murder equivalent to mistake; and (ii) Indirect murder.29
For the purpose of this research, only intentional murder is to be defined. It is a murder when a person willfully and with the intention of causing death makes another person the direct object of his result of that action. The jurists have stated that there are three basic conditions for intentional murder:
i.
The victim must be a living human being and protected (all Muslims, non-Muslim who permanently reside in an Islamic state, non-Muslims
29
Prof. Dr. Anwarullah. 2008. The Criminal Law of Islam. p. 33.
38
who are either in a treaty or not a at war with the Muslims and nonMuslims who enter an Islamic state with permission) human being, ii. The victim must have died as result of the action of the accused, and
iii.
The offender has willful intention of causing death of the victim.
According to Shamrahayu, basically the definition of of murder is similar under the three system of law, with few distinctions between them.
Particularly on (i) Statutory context, (ii) Express element of protection of that state (iii) element of death in a day and a year (iv) whereabouts of the murder
(v) who can commit the murder, (vi) intention of causing bodily injury which will cause death or likely to cause death.
30
Therefore for willful murder the
definitions are not really diverse and it is suggested that if they may fall under the same punishment, it will not hamper the theory of punishment to serve best justice for the community.
The Law of Diyat in Islam
Diyah is defined as payment of indemnity for killing and injuring a human being. Therefore, the word diyah as far as homicide is concerned denotes the amount of compensation paid to the next of kin of the deceased as substitute in cases of murder and as the original reparation in case of quasiintentional murder and killing by mistake.31 This concept is originated from alQuran and al-Hadith. Allah S.W.T says:
30
Shamrahayu Bt. Ab Aziz. 1993. Law of Murder: A Comparative Study of Malaysian Law,
English Law and Islamic Law. p. 7.
31
Shah Haneef, S.S.. 2000. Homicide in Islam: Legal Structure and the Evidence
Requirement. A.S. Noordeen: Kuala Lumpur. Abdul Rahman Bin Awang. 18th December,
2012. Diyah (Blood Money) as Substitution to Capital Punishment: An Attempt Toward
Harmonisation Between Shari’ah and Malaysian Penal Code. Aust. J. Basic & Appl. Sci.
39
ِْ ْ
ٍ ُِْ َ َ ََ
ْ ِ ُ َ ٍ ُّ ْ ِ ٍ َ ِ ة
ٌَوما كان لِمؤمن أَن يَقتُل مؤمناً إِالَّ خطَئاً ومن قَتَل مؤمناً خطَئاً فَ تَحرير رقَ بَة مؤمنَة ودي
َ ُِْ َ
ََ َ
ُ َ
ِ
َِ َ
ٍ ِ ْ ُّ ٍ
ِِ ْ
َّ َّ
مسلَّم ٌ إِلَى أَهله إِالَّ أَن يَصْقُواْ فَِإن كان من قَ وٍم عْو لَّكم وهو مؤمن فَ تَحرير رقَ بَة مؤمنَة
ُّ َ َ ة
َ ُ ِ ْ ٌ ْ ْ َ ُ َ ْ ُ ٍّ ُ َ ْ
ِ ْ ُّ ٍ
َِ َ
ِِ
وإِن كان من قَ وٍم بَ ْي نَكم وبَ ْي نَ هم ميثَاق فَْيٌَ مسلَّم ٌ إِلَى أَهله وتَحرير رقَ بَة مؤمنَةً فَمن لَّم
ُ ْ َ ُ ْ ِّ ٌ ِ ة ُّ َ َ ة
ْ
ْ َ
َ ُِْ َ ْ
َ
َِ
ِ
َ َِ ْ ِ ُ َ ْ َ ِ ُ َ ِ ْ ِّ َ ِ و
ًيَجْ فَصيَام شهريْن متَتَابَِع ْين تَوبَةً من اللّه َكان اللّهُ عليماً حكيما
َ
“And never is it for a believer to kill a believer except by mistake. And whoever kills a believer by mistake - then the freeing of a believing slave and a compensation payment presented to the deceased's family [is required] unless they give [up their right as] charity. But if the deceased was from a people at war with you and he was a believer - then [only] the freeing of a believing slave; and if he was from a people with whom you have a treaty - then a compensation payment presented to his family and the freeing of a believing slave. And whoever does not find [one or cannot afford to buy one] - then
[instead], a fast for two months consecutively, [seeking] acceptance of repentance from Allah . And Allah is ever Knowing and Wise” (An-Nisaa’: 92)
The traditional scholars are unanimous that the diyah for killing a free Muslim is one hundred camels against those own camels.
6(11):
p.108.
106-112,2012.
http://www.ajbasweb.com/ajbas/2012/Special%20oct/106-112.pdf
40
ِ
ِ َ
ِ َ ٍ ْ ِ ِ َ ِ ِ َّ ِ ِ ْ
ُعن أَبِي بَكر بْن محمْ بْن عمرو بْن حزم عن أَبِيه عن ج ِّه «أَن رسو ِ اللَّه - صلَّى اللَّه
َ
ْ
َُ
ُ َ َّ ْ َ ْ َ
ْ
َ
َْ
ِ
ِ
َّ َ
َِ ِْ
علَْيه وسلَّم - كتَب إلَى أَهل الْيَمن كِتَابًا، َكان فِي كِتَابِه .... وأَن فِي النَّ فس ِّيَة مائَة
ً ِ َ ْْ ِ ال
َ َو
َ َ َ ََ َ
ِ ِْ ْ ِ
من البِل
“Abu Bakar ibn Muhammad ibn ‘Amr ibn Hazm rhm reported from his father that the Prophet S.A.W. wrote a letter to ‘Amr ibn Hazm for the people of
Yaman wherein the Prophet S.A.W said “… the compensation of a life is one hundred camels”32
However, the jurist do not have consensus on the type of camel to compensate. Thus, it is suggested that the legislature could fix the value of the full diyah for homicide. This may be arrived at after consultation with various religious and social body as there is merit in having constant figures for all type of killing. The objective is to mollify the injured feeling of the victim’s relations. Islamic law also does not prohibit the court to impose time served to express a social condemnation of the murder act for the offender. This is but an example. It is to be noted that the penal sanction would be the secondary issue. The important is the welfare of the victim’s family.
Single Litigation
One of important feature in Islamic law on homicide case is that the trial is being conducted covering both the criminal and civil claim. This is
32
Al-Shawkani, Nailul Authar, Vol 5, Kitab Dima’, p. 2542-243: hadith 3972: Muwatta’
Imam Malik, Kitab al-‘Uqul: The Book of Blood Money. P. 337. Hadith 1474. Alsagoff, Syed
Ahmad S.A. 2006. Al-Diyah as Compensation for Homicide and Wounding in Malaysia. p.
163.
41
different with the current adversarial system in which prosecution and civil litigation must be done in two separate proceeding. This was caused by archaic dichotomy of crime and tort for offences against a person; a legacy inherited from British colonial. This will imbue more cost to the victim’s family when their wanted to get compensation out of their loss. Besides that, it will bring danger as the family may deter from asking their legal right due to financial constrain. Furthermore, there is also danger of limitation period for civil case expiring due to the victim’s family being ignorant of their right because in double litigation, the prosecution only cares about the criminal proceeding.
Single trial system will save legal cost, time consumption and financial constraint out of double litigation.33
It is surprisingly to know that in inquisitorial system single trial practice is normal. In French the victims of the crime play an active and integral role in investigation, testimonial statement and also the in sentencing.
After a conviction has been made, victims have right to give input to determine appropriate sentence to the convicted person. The victims are also permitted to address the court on the matter of appropriate compensation payable to them as integral part of criminal proceeding. The victims of the crime are actually assisting the court to determine the sentence for the convicted after the verdict had been delivered. 34
By understanding this reality, it will raise one question. Do we need to change our mode of trial to make the justice for the heirs of the victim in
33
Alsaqoff, Dr Syed Ahmad SA. 2009. Victim Compensation For Homicide For All
Malaysians. p. 6.
34
Vanya King. 17th March 2013. Criminal Procedure in Non Adversarial and Adversarial
Systems of Justice viewed from the Victim’s Perspective.http://www.aija.org.au/NAJ%202010/
Papers/King%20V.pdf. p. 2.
42
homicide case are served? This would be tedious process. Therefore, it is suggested that we optimize the current law available to us to implement or at least gives the basic foundation for blood money.One way to do this by making use the Victim’s Impact Statement under sections 173(m)(ii) and
183A, and power of the court to order compensation to victim under section
426(1A). These laws are new to our legislation. The victims of the crime would not only appear as witnesses to a proceeding but may give statement in assisting the court to impose sentence. The law also provides the power of the court to order compensation to victim of the crime especially for heirs of victim of homicide case. It is also suggested that in determining the amount of compensation, a court direction need to be made to rather than leaving the law to become the experiment of the lawyers. Authoritative bodies such Attorney
General Chambers, Muftis Officials and Department of Syariah Judiciary should convened and decide on the quantum of the compensation working as the guideline for the judges in deciding homicide cases.
Impecunious Offender: Takaful replacing the system of ‘Aqilah
Before the emerging of Islam in Arab’s land, during the period of
Jahiliyyah, a murderer is financially backed up by his tribe to pay the blood money to the victim of another tribe. This system is called ‘Aqilah. By using this system, the burden to pay substitute money out of clemency is shared among the members of an institution who vouch to pay responsibility of what their member had committed. Therefore, it will lessen the burden bears by the offender, giving more security to the victims of the crime and to signal
43
awareness and deterrence upon the offender’s tribe to be careful in the future undertaking and to avoid future bloodshed.
The word ‘aqilah is derived from the root word al’aqlu ) ( الَعقلwhich literally means an act of withholding or restraining. On juridical meaning, it signifies that the ‘Aqilah ( ( عاقلةby paying the compensation, restrain the legal heirs of the victim from being oppressed and complaining. Another meaning is, as in pre-Islamic era, the murderer or his tribes used to take camels as compensation for killing to courtyard of the next kin or the victim.35 ‘Aqilah is defined in Islamic law as agnatic male relatives of a person on his father’s side, or an institution or organization from which he receives or expects to receive support for help.
36
In Islam, this concept only applicable in the case
of quasi-intentional murder and murder by mistake. It is not applicable in the case of willful murder.
‘Aql is imposed not strictly by family bonding. It can be in various forms. The ‘Aql is imposed on those who are supposed to support (ahl nusrah) the killder by their silence or otherwise. Therefore, ‘aqilah may be:37
a) Al-Qarabah : Blood relationship with the murder.
b) Al-Hilf : Covenant to support the community.
c) ‘Aqd Mawalat : An agreement to share the burden of the other whether monetary or otherwise. It started in the beginning of
35
S.S.. Shah Haneef. 2000. Abdul Rahman Bin Awang. 18 th December, 2012. Diyah (Blood
Money) as Substitution to Capital Punishment: An Attempt Toward Harmonisation Between
Shari’ah and Malaysian Penal Code. p.109.
36
Prof. Dr. Anwarullah. 2008. The Criminal Law of Islam. p. 92.
37
Hasan, N. 1984. . Abdul Rahman Bin Awang. Ibid.
44
Islam, when a non-believer accepted faith on the exhortation of a Muslim, the two were bound by the agreement to help each other. Sarakhsi holds that acceptance of faith is only an illustration and not a condition of this kind of agreement and that any two persons can enter into ‘aqd mawalat.
d) Al-Wala’ : Inclusion of a freed slave in the family of the previous master.
e) Al-Qasamah : Imposition of voluntary collective fine for the payment of ‘aql.
f) Al-‘Idd : A counting a person as member of the group. Such a person might have immigrated and assumed customs and manners of the group so that he is identified with are for all practical purposes.
g) Al-Hirfah : A trading relationship. The members help each other and provide protection to fellow tradesmen.
Some people may be said that the system is a demise since the ‘Aqilah system is already being abandoned. Besides that, the family bonding is not as close as it was before. Many people become individualistic and capitalist because of globalization. However, should this unwarranted result be a constraint to justice being served? It should not be. Thus in the context of reviving doctrine of ‘Aqilah, an analysis need to be undertaken by looking to the various forms of ‘Aqilah. By understanding these of forms of ‘Aqilah, a specific scheme can be engineered to help the doctrine survive in modern
45
lifestyle without neglecting its virtues and justice. Therefore the followings are the proposition of result out this issue:38
(i) Ibn ‘Abidin concurred that since the mutual assistance has forgone, and Bait al-Mal is no more exist, thus the correct proposition is that the offender must make the payment by his own. (ii) Imam al-Nawawi reiterated that the burden of diyah cannot be imposed on the members of the confederate, not on the shareholders in a company, even not on the members in a social organization. However, they can organize themselves into class organization which protects them and pays the diyah on their behalf. This holds goof as an alternative particularly for
Muslim who live in non-Muslim states and they have no Bait al-Mal. (iii) Syeikh Abdul Qadir ‘Awdah suggested that the alternative is for the government to constitute a public taxation department whose levies should be allocated for redemption for such compensation to avoid heavy burden on the offender, to save his life from unnecessary blood spill and to avoid heavy burden on Bait al-Mal
From the above propositions, we may reconcile each of them into a practical scheme. It is suggested that the nowadays practice of Takaful would suffice this necessity. It is also akin to one of forms of ‘Aqilah which is al-
38
S.S. Shah Haneef. 2000. Abdul Rahman Bin Awang. Ibid .p. 110.
46
Hirfah. It should be noted that in current practice of Takaful the fund is being used by the Takaful provider in numerous trades and commercial activities to generate income which resemblances with the concerpt of mutual assistance under al-Hirfah.
It is also following the objectives of social insurance to provide welfare of the economically underprivileged and to lighten the burden of contingencies on the victims. Pertaining to social insurance, there is a number of scholars permitting it in Islam. Sheikh Abu Zuhrah said that social insurance which is instituted by the state whether for workers or salaried employees, whether limited to specific groups or applicable in general, are right and permissible.
Syed Ahmad S.A al-Sagoff added that the notion of insurance in Islam is indeed acceptable and there is nothing wrong in devising a system requiring each industry to those engaging in a particular activity (such as drivers of motor cars or surgeons), to pay a specific voluntary or compulsory amount monthly or annually, to collectively bear the burden of compensation for an unintentional harm committed by one of them in the course of his work, provided that insurance should not be for commercial gain nor bear any taint of usury or include any reasonable gharar (uncertainty).39 Al-Sagoff also added that it seems mockery that the law fully compensate a victim of mere negligence in a road traffic accident by legislating for mandatory motor
39
Abdul Rahman Bin Awang. 18th December, 2012. Diyah (Blood Money) as Substitution to
Capital Punishment: An Attempt Toward Harmonisation Between Shari’ah and Malaysian
Penal Code. p. 110.
47
vehicle insurance but leaves the victim of an unintentional act uninsured and usually uncompensated.40
According to Dr. Ahmad Al-Sagoff, if the social insurance scheme unable to be implemented, there is always possibility that the offender may not able to satisfy the compensation payable. This would lead to the victim’s family left uncompensated. Therefore, he suggested the state should compensate the victim’s family. He added is that the state could set up a special fund comprising of fines received for other criminal offences for this purpose.41 It is suggested by Dr. Mohammad Akram that it is a cogent argument for State to pay compensation to the victim because it has failed in its responsibility to protect his life and liberty. However, it is not of full compensation and leaves the offender free from his inherent liability. Thus compensation should be paid partly by the offender and partly by the State.
Then, the State should have right to put charge on the offender’s property to in lieu of payment made by the State. It is suggested that the fines imposed in cases of violation of environmental laws, smuggling or other public offences may be remitted to the compensation fund that can be created to provide compensation to the victims.
It is also suggested that another source could be the contribution of the offender’s earning during his period of incarceration. In order to raise earning it is necessary to establish industries in the prison that may increase the size and the productivity of the i9nmates. The first step which is required is that the
40
Alsaqoff, Dr Syed Ahmad SA. 2009. Victim Compensation For Homicide For All
Malaysians .[2009] 6 MLJ cxx. p. 6.
41
Ibid.
48
present laws regulating prison labour should be modified and market for prison products should increase in number and the co-operation of the business community should be obtained. 42
It is also pertinent to be reiterated that this assistance would not be provided to every convicted person. It is only for the impecunious offender.
Therefore, the orders of responsibility to pay the compensation to the victims of the crime are:
1) The offender himself or herself;
2) The ‘Aqilah, or in the proposed context, the social insurance fund
3) The government if the social insurance unable to be implemented.
The Law of Diyah & Takaful v No-Fault Liability Scheme43
There is another scheme of compensation which is modern and applied in several countries like for example New Zealand which is No-Fault Liability
(NFL).Under this system, every person who is a victim in an accident
(normally in car accident) having right to get compensation from a public fund. However, the definition of victim under this scheme is covering every person injured regardless the victim or the wrongdoer or the person who afflicted the injury to himself. This is contradict with the law of Diyaat in which the law of Diyat the self-victim and the wrongdoer is having to legal right for compensation under public fund.
42
Dr. Mohammad Akram. 2008. “An Approach To The Victims of Crime in Malaysia”.
(Paper). 5th Asian Law Institute Conference. p. 8-9.
43
Dr. Lukman Abdul & Dr. Asmawati Suhid. “Victimology Dalam Undang-Udang Jenayah
Islam: Sistem Diyat Sebagai Satu Alternatif Kepada No Fault Liability”. 2013. Hudud di
Malaysia: Cabaran Perlaksanaanya. Kuala Lumpur: Angkatan Belia Islam Malaysia (ABIM).
p.133 – 146.
49
According to former Bar Council’s President, Ambiga Sreenevasan,
NFL will educate a person to be irresponsible on the road where every road users will be compensated by the law regardless of their fault or had inflicted injury to other party. This is a distinct feature from law of Diyaat as notwithstanding in pursue of compensating the victims of road accident, the justice is still being distributed accordingly. Nevertheless, in spirit of plural implementation of law of Diyaat, any brand of scheme is not an issue. We can promote the law of Diyaat under the brand of Malaysia’s NFL with some modifications against its discrepancies. The most important is the delivery of wisdom entombed in the law of Diyaat.
Blood Money as the Alternative Punishment and Not as a Mere
Additional Punishment
Section 302 of Malaysian Penal Code provides mandatory death penalty for offender of murder case. It means there is no discretion on behalf of a learned judge to give alternate punishment once the case of murder has been proven beyond reasonable doubt except to sentence the convicted person on the death row. Section 426 (1A) provides a new provision replacing the old court power in section 426.
This new provision requires the Court, if the Public Prosecutor applies for, to order the convict (or the parent or guardian, in case of a child convict) to pay monetary compensation to the victim or the deceased victim’s family. In assessing the quantum of compensation, the Court is empowered to hold an inquiry, and specific particulars must be considered including expenses and
50
losses (including loss of income) suffered by the victim, and the convict’s financial capability to meet the compensation.44
In summary, it is clear that the compensation acts as the additional punishment but not as alternative punishment. The author believes that the best form of punishment is giving the alternative punishment in lieu of death penalty. This is by the reason of the sanctity of human life provided under article 5 of the Federal Constitution. Despite the phrase “except in accordance with the law” appears in the article, the author again believe that the exception of such right must reflect the actual need of society. And the need here should consider every member of a society. Therefore, it is suggested that we apply the law of blood money which giving the alternative punishment for willful murder case as a replacement for mandatory death penalty.
In Surah al-Baqarah, Verse 179, Allah SWT says:
واْلُنثَى
َ
ِ
ِ
ِ
ْيَا أَيُّها الَّذين آمنُواْ كتِب علَْيكم الْقصاص فِي الْق ْت لَى الْحر بِالْحر والَْع ْبْ بِالَْع ْب
َ
َ
َ ُ َ َ ِّ ُ ُّ ُ
ُ َ ُُ َ َ ُ َ َ
بِاْلُنثَى فَمن عفي لَهُ من أَخيه شي ٌ فَاتِّبَا ٌ بِالْمَعروف وأَداء إِلَْيه بِِإحسان ذَلِك تَخفيف من
ِّ ٌ ِ ْ َ ٍ َ ْ ِ َ َ ِ ُ ْ َ َ ْ ُ ِ َ ِ ْ ِ ِ َ ْ ء ع
ربِّكم ورحم ٌ فَمن اعتَْى بََعْ ذَلِك فَ لَهُ عذاب أَلِيم
َ َ ْ َ ْ ِ َ َّ ُ ْ َ َ ْ َ ة
ٌ ٌ ََ
O ye who believe! the law of equality is prescribed to you In cases of murder: the free for the free, the slave for the slave, the woman for the woman. but if
44
Abu Daud Abdul Rahim. 14th January, 2011. “Do We Have a New Criminal Procedure
Code?” Criminal Law. http://www.malaysianbar.org.my/criminal_law/do_we_have_a_new_criminal_procedure_code _.html
51
any remission is made by the brother of the slain, then grant any reasonable demand, and compensate Him with handsome gratitude, This is a concession and a Mercy from your Lord. after This Whoever exceeds the limits shall be In grave penalty.
From abovementioned verse, it is clear in our mind that for offence of murder, the provision for death penalty is immune because it is a divine law, unequivocally and clearly commanded by All Knowing and All Wise Allah
SWT for the benefit of mankind. Thus, once a command is clearly and unequivocally legislated in al-Quran, it is cannot be easily abolished or replaced by any kind of punishment, should there must be a brilliant wisdom behind the command. However, it is not a mandatory in nature.
The right to sentence capital punishment is not vested in judge neither in Yang di-Pertuan Agong or Rulers of States, which totally different from what has been practicing today in Malaysia legal framework particularly under article 41 of Federal Constitution and section 301 of Criminal Procedure Code.
As had early mentioned in Chapter Two, the system we are practicing today is the effect of rise of kingship and the organisation of royal courts led to the eventual change of homicide from a wrong remedied by compensation to the victim’s family, to a crime punished by the state with death, imprisonment or fine. This transformation despondently resulted in the loss of the victim’s family right to compensation.
Islam protects the public interest by giving the right to determine punishment for murder case offender in the hand of victim’s heirs. Hence, the
52
role of court is only to decide whether the offender is guilty of murder offence.
The heirs can choose the following alternatives punishments:
1. Imposing capital punishment; or
2. Accepting diyat (blood money); or
3. Pardoning the convicted.
The payment of blood money may be a better alternative for a family who lost their breadwinner out of murder. The welfare of a young widow and children’s future would be taken care of for a temporary period. This is but an example. This is effective to mollify the most aggrieved part of society which is the family’s victim even though human’s life is sacred and irreplaceable; still it is a better solution than paying fine to the federal fund. It is to be noted that nothing prohibits a state to impose penal punishment to the convicted for the sake of society’s interest. In addition, this is considered as the second chance to the convicted felon to rehabilitate and to reform. 45
The next alternative is granting pardon to the convicted. This is but an example. A mother who has lost a son may rather forgive the other son who committed a murder. The present mandatory death penalty means she will lose another son. However, this solution should not be interpreted as encouraging murders. The threat of death penalty still looms in a felon’s head since he does not know whether he is pardoned or not before he committing a murder.
45
Dr. Mohammad Shabbir. n.a. Outlines of Criminal Law and Justice in Islam. Petaling Jaya:
International Law Book Services. p. 33.
53
Furthermore, court still can impose the punishment of imprisonment in the interest of society.
Plural Administration
Some jurist, for example, Imam Abu Hanifah explains that the implementation of Qisas and Diyat should be covering the case of causing death of a non-Muslim resident of the Islamic State (Dzimmi). Moreover, the al-Quran says, “the life for the life”, which includes the murder of a nonMuslim by a Muslim. Professor Dr Anwarullah holds that the difference of the jurists on this point owes itself to carried derivations from the Syariah texts and the more correct derivation is the one which declares Muslim and nonMuslim equal – for the sake of harmony and generality of the Syariah text.46
Professor Dr Syed Ahmad al-Sagoff is also advocating for the implementation to cover also the non-Muslim citizen in the context of multicultural society like Malaysia.47 It is better to stick in a singular system rather than plural types of court jurisdiction that may hamper the due course of justice.
46
Prof. Dr. Anwarullah. 2008. The Criminal Law of Islam. p. 76-77.
Alsagoff, Syed Ahmad S.A. . Al-Diyah as Compensation for Homicide and Wounding in
Malaysia. p. 364.
47
54
CONCLUSION: SUGGESTIONS AND RECOMMENDATIONS
From the very beginning of this study, the most important notion quoted as the purpose of this study to achieve. This is manifested through proper and appropriate distribution of justice. We should not understand justice as should be disseminated equally among all parties. The justice is to treat alike cases alike. It should be proportionate to damage of the crime occurred, to whom should the restoration and substitution being provided.
Thus, for victims, society, government or even the criminal everyone has respective right and interest to justice. Therefore, the author reiterated that in homicide case, it should follow the alternative punishment scheme rather than mandatory. The right to sentence must come from the family of the victims as they are the most aggrieved part of the society. The role of judge will only determine the conviction of the accused. To commute and clemency it is not the role of the Ruler or the Yang di-Petuan Agong but the aggrieving family.
This role should be restored back to the original party as it is the effect of archaic dichotomy between crime and personal injuries which consequently deprive the right of family to get compensation. However, the Ruler may do so if it is the outcome after consultation with the victim’s family member. To make it into reality, amendment has to be made to Federal Constitution,
Criminal Procedure Code and Penal Code. In any case, this can also be manifested by imposing court direction as guidelines to the judges to
55
determine quantum of compensation to be paid to the victim’s family. The proposed court direction is made by collaboration between authoritative institutions like Attorney General Chambers, Offices of Muftis and
Department of Syariah Judiciary (JKSM).
The author understands that to move into inquisitorial mode of trial is nearly absurd. It will affect to amend numerous of law. This if happens will hamper the smooth administration of justice. However, the author believes that the wisdom of the inquisitorial system namely the right of victims of crime to involve in sentencing phase is not an alien development in our law development. Since 2011, the Criminal Procedure Code has received a number of significant amendments to the development of criminal law in our country.
Among the interesting note is that section 426 (1A), which now empowers the judge to direct the criminals who have been convicted of an offense to pay compensation to victims of crimes committed. Prior to this amendment, criminal cases decided without taking into account the welfare of the victims of crime but to appear only as a witness in the trial. To get compensation, the victims have to file civil claims (tort) which would take a long time and high costs due to compensation through litigation is not a single such inquisitorial system. In addition, the inclusion of the new law as a Victim's Impact
Statement under section 173 (m) (ii) and 183A of the Criminal Procedure
Code gives opprtunity to the victims of crime to express suffering from the crime to themselves after the end of the trial to assist the court in determining the appropriate punishment for offenders and fair compensation to the victims.
56
This is a very positive development and is close to the Islamic legal system, particularly in law of diyat (blood money law).
The author also suggests that the implementation of blood money law should be under plural jurisdiction of civil court and not under the exclusive jurisdiction of Syariah court. It is proved that not only Islam embraces with this kind of law but traced back to more ancient civilizations. It was also applied in countries like England once ago. In Malaysia, the judgment in the case of Low Lu Keng v PP can becomes a great example on non-Muslims who understand the very wisdom of blood money law. We must appreciate the multicultural society we have in this country and it is hoped blood money law will distribute the justice indiscriminately if it is imposed to every citizen regardless of their religion.
In implementing blood money law, there is already academic movement being established. It consisted of the lecturers in local universities such as Prof. Ahmad Mohammad Ibrahim, Dr. Syed Ahmad S.A. al-Sagoff,
Dr. Abdul Rahman Awang and Prof. Dr. Muhammad Akram of Islamic
International University of Malaysia and their disciples. Conference and intellectual discourse need to be organized to discuss the practical aspect of the law. This will involve authoritative body like Bar Council, Malaysian Bar and State’s Bar as well as the Syariah Judiciary bodies. Besides, this movement cannot stop in academic level. It must be level up to the higher position. The academician should take an upper step to table the in the
Parliament. It means the academician especially the Muslim need to coordinate with the Member of Parliament to bring this law into existence.
57
This is not an alien approach since the former Lord President, Tun Salleh
Abbas was involved in drafting of Kelantan Syariah Criminal Code Enactment
1993 which was discontinued due to overlapping jurisdiction as most of the offences under the enactment falls under the matter under Federal List.
Therefore, the purpose of this study is to suggest the implementation will not only govern a state but the whole federation as a singular system to avoid unwarranted problem to repeat.
The officers of the court are also responsible for this development. For public prosecutors, they must be alerted to invoke section 426 of Criminal
Procedure Code. to murder case with the view to compensate the victim’s heir.
The same goes to section 173 (m) (ii) and 183A of the Criminal Procedure
Code which provides Victim’s Impact Statement as the mechanism for the victims including the family members and the witness to express their misery out of the crime committed. As for the defence counsels for the time being may invoke the plea bargaining during the pre-trial conference to opt for lesser charge other than death penalty to allow the victims of the crime get compensation in lieu of the criminal life given the second chance to change.
This is but an example. Lastly, the judges themselves must play a progressive role to allow the victims of the crime get their compensation and develop binding precedence as the land mark case.
Next, there is an issue if the family chose blood money to be paid, but the murderer could not afford the payment. Would he or she be reversed back to his original position of death penalty? The answer is yes since the compensation is not satisfied, he need to be put back on death row. That is the
58
order of the alternative punishments proposed. However, some jurist has a better solution. In respect of sanctity of human life and debate on abolishment of capital punishment as we have today, the government could implement a compulsory insurance scheme covering all cases of death resulting from homicide. Thus, a public fund shall be used to help the family of victim to get their justice and mollify their feeling respectively. This is originated from the practice of Áqilah which is accepted by Islam. The central idea of the Aqilah concept is that the members of the accused’s tribe used to be mutually agreed to a financial contribution for the purpose of protecting the accused from financial liability arising out of causing a culpable homicide. This form of contribution has the resemblance with the contribution paid in today’s Takaful practice. And this is not an alien approach as recently the government was drafting new law namely No-Fault Liability (NFL) which will use the public fund to help to compensate damages out of motor vehicle accident. This scheme has some similar characteristic with the proposed Takaful scheme to use public fund lightening heavy burden of the party who caused the accident.
It is also to be noted that NFL is also criticized as to the implementation may result a person would become irresponsible on the road. Therefore, it is suggested to improve such drafting, a comparison need to be made with the proposed law of blood money to fill up the discrepancy.
As the conclusion, the author believes these recommendations are relevant to the current legal scenario. The emergence of death penalty abolishment movement would be pleased if we enact a law which gives better alternative than death penalty. It is also in line with need to have alternative
59
ways of punishment. It also will help the overload in the prison. Thus, it will save the federal money and the abundance will be spent on other needs of society. On behalf of the convicted as when the clemency has been granted, he will have it as the second chance to live and undergo rehabilitation in institution provided by the government in short time served in prison or other institution. For the family of the victim, the amount payable to them will help them to mollify their loss and avoid unnecessary bloodshed and to remove vengeance. For society at large, the function of punishment to give retribution and deterrence is still working as the threat of the death penalty is still looming in head of a potential criminal because he does not know does he can get the clemency or not. Besides that, the heavy burden to pay blood money will also make him reconsider his action so in the future he would not spending his entire life paying the substantial amount of blood money. As for the government, they will act as the middle person after to determine the appropriate sentence for the convicted felon as the family has the right to continue with death penalty or to remit and get the blood money or to forgive the offender. This will lessen the burden of the judiciary and avoid the long term disposal of a case.
Therefore, the author shall conclude his writing by a quote of Prof.
Ahmad Mohamed Ibrahim which said:
“…The obedience to the Islamic Criminal Law does not only depend on the existence of temporal laws to enforce them. The provision relating to the law are contained in the Holy Quran and the Sunnah and these have not and cannot be repealed by anyone. The Muslim
60
needs to be told about them and to understand then and obey them so that they can achieve success in this world and the next…
….As the Islamic Criminal Law is laid down by Allah, Allah will surely help us if we seek to enforce the law. With Allah’s help, both the offences and the punishment for them will be avoided…”48
48
Prof. Ahmad Mohamed Ibrahim. 2000. The Administration of Islamic Law In Malaysia.
Kuala Lumpur: Institute of Islamic Understanding Malaysia (IKIM). p. 626.
61
BIBLIOGRAPHY
1. Roslam Mat Nor & Zamani Haji Sulaiman. 1998. Pentadbiran
Keadilan Jenayah di Malaysia. Kuala LumpurL Dewan Bahasa dan
Pustaka.
2. Francis Ng Aik Guan. 2006. MLJ CLP Series: Criminal Procedure 2nd
Edition. Selangor: Malayan Law Journal Sdn. Bhd.
3. Hart, H.L.A. 1997. The Concept of Law. New York: Oxford University
Press Inc. 2nd ed.
4. Haswira Nor Mohamad Hashim & Anida Mahmoor. 2009. Law,
Morality, Justice, Freedom and Equality: The Underlying Concepts.
Malaysia: McGraw-Hill.
5. Prof. Hari Chand. 2011. Modern Jurisprudence. Petaling Jaya:
International Law Book Services.
6. J.H. Farrar & A.M. Dugdale. 1990. Introduction to Legal Method.
London: Sweet & Maxwell.
7. Mohamamad Hashim Kamali. 1999. Freedom Equality and Justice in
Islam. Petaling Jaya: Ilmiah Publisher Sdn. Bhd..
8. Alsagoff, Syed Ahmad S.A. 2006. Al-Diyah as Compensation for
Homicide and Wounding in Malaysia. Kuala Lumpur: International
Islamic University Malaysia (IIUM).
9. Prof. M.R. Zafer. 1994. Jurisprudence: An Outline. Kuala Lumpur:
International Law Book Service.
62
10. Shamrahayu Bt. Ab Aziz. 1993. Law of Murder: A Comparative Study of Malaysian Law, English Law and Islamic Law. (Master Thesis).
Petaling Jaya: International Islamic University Malaysia.
11. Abu Daud Abdul Rahim. 14th January 2011. “Do We Have a New
Criminal
Procedure
Code?”.
Criminal
Law.
http://www.malaysianbar.org.my/criminal_law/do_we_have_a_new_ criminal_procedure_code_.html 12. Dr. Mohammad Akram. 2008. “An Approach To The Victims of
Crime in Malaysia”. (Paper). 5th Asian Law Institute Conference.
Singapore. 22-23 May.
13. Alsaqoff, Dr Syed Ahmad SA. 2009. Victim Compensation For
Homicide For All Malaysians .[2009] 6 MLJ cxx.
14. n.a. 1 of June, 2013. “Settlement Of Death Compensation Claims”.
Death
Cases
Of
Indian
Nationals.http://web.archive.org/web/20110724130457/http://www.cgi jeddah.com/cgijed/Welfare/ deathbooklet.htm.
15. n.a. 15th October, 1997. “Deal would have 'compensation' going to charity”. Money, not death, sought in murdered nurse case. http://edition.cnn.com/WORLD/9710/15/Australia .nurse/
16. n.a. 29th May, 2013. “OFW on Saudi death row forgiven by victim's heirs – Binay”. Global Filipino.http://www.abs-cbnnews.com/globalfilipino/05/29/13/ofw-saudi-death-row-forgiven-victims-heirs-binay.
17. n.a. 4th February, 2013. “Saudi blood money ruling angers activists”.
Middle
East.
63
http://www.aljazeera.com/news/middleeast/2013/02/201323223618362
435.html.
18. Prof. Dr. Anwarullah. 2008. The Criminal Law of Islam. Kuala
Lumpur: A. S. Noordeen.
19. n.a 21st June, 2011. “Saudi Arabia in Indonesian maid beheading row”. News
Asia-Pacific.
http://www.bbc.co.uk/news/world-asia-
pacific-13860097.
20. Chamberlain, Gethin. 13th January 2013. “Saudi Arabia's treatment of foreign workers under fire after beheading of Sri Lankan maid”. The
Observer. http://www.guardian.co.uk/world/ 2013/jan/13/saudi-arabiatreatment-foreign-workers
21. Sherry, N. Virginia. 2004. Saudi Arabia: Bad Dreams, Exploitation and Abuse of Migrant Workers in Saudi Arabia. New York: Human
Right Watch.
22. Abdul Rahman Bin Awang. 18th December, 2012. Diyah (Blood
Money) as Substitution to Capital Punishment: An Attempt Toward
Harmonisation Between Shari’ah and Malaysian Penal Code. Aust. J.
Basic
&
Appl.
Sci.
6(11):
106-112,2012.
http://www.ajbasweb.com/ajbas/2012/Special%20oct/106-112.pdf
23. Vanya King. 17th March 2013. Criminal Procedure in Non
Adversarial and Adversarial Systems of Justice viewed from the
Victim’s Perspective.http://www.aija.org.au/NAJ%202010/Papers/
King%20V.pdf.
24. Alsaqoff, Dr Syed Ahmad SA. 2009. Victim Compensation For
Homicide For All Malaysians.[2009] 6 MLJ cxx. p. 6.
64
25. Dr. Mohammad Akram. 2008. “An Approach To The Victims of
Crime in Malaysia”. (Paper). 5th Asian Law Institute Conference.
26. Dr. Lukman Abdul & Dr. Asmawati Suhid. “Victimology Dalam
Undang-Udang Jenayah Islam: Sistem Diyat Sebagai Satu Alternatif
Kepada No Fault Liability”. 2013. Hudud di Malaysia: Cabaran
Perlaksanaanya. Kuala Lumpur: Angkatan Belia Islam Malaysia
(ABIM).
27. Abu Daud Abdul Rahim. 14th January, 2011. “Do We Have a New
Criminal
Procedure
Code?”
Criminal
Law.
http://www.malaysianbar.org.my/criminal_law/do_we_have_a_new_cr iminal_procedure_code_.html 28. Dr. Mohammad Shabbir. n.a. Outlines of Criminal Law and Justice in
Islam. Petaling Jaya: International Law Book Services.
29. Prof. Ahmad Mohamed Ibrahim. 2000. The Administration of Islamic
Law In Malaysia. Kuala Lumpur: Institute of Islamic Understanding
Malaysia (IKIM).
PERSPECTIVE
UMAR MUKHTAR BIN MOHD NOOR
UNIVERSITI SAINS ISLAM MALAYSIA
JUSTICE FOR VICTIM’S FAMILY IN HOMICIDE CASE: A
MALAYSIAN PERSPECTIVE
Umar Mukhtar Bin Mohd Noor
(Matric. No. 1080183)
Academic project report submitted in partial fulfillment for the
BACHELOR OF SHARIAH AND LAW WITH HONOURS
Faculty of Syariah and Law
UNIVERSITI SAINS ISLAM MALAYSIA
Nilai
June 2013
i
AUTHOR DECLARATION
بسم اهلل الرحمن الرحيم
I hereby declare that the work in this academic project is my own except for quotations and summaries which have been duly acknowledged.
Date: 15th of June 2013
Signature
: ...…………………………….
Name
: Umar Mukhtar Bin Mohd Noor
Matric. No.
: 1080183
Address
: No. 4, Jalan 3/3, Taman Desa
Taming Sari, 76300 Sungai
Udang, Melaka, Malaysia.
ii
إقرار المؤلف
بسم اهلل الرحمن الرحيم
إنين أقر وأعرتف أن هذا البحث من عملي وجهدي الشخصي. أما املقتطفات واالقتباسات لقد
أشرت إىل
مصادرها يف هامش البحث.
الرتيخ
: 15 يونيو 2513
التوقع
:..................................
االسم
: عمر خمتار بن حممد نور
الرقم اجلامعي
: 2051015
العنوان
: 4، جالن 2/2 تامن ديسا تامينج ساري، سوجناي أودانج 11200، مالك،
ماليزيا
iii
ACKNOWLEDGEMENT
In the name of Allah, the Most Merciful and the Most Compassionate.
Alhamdulillah, praise to the Almighty. Grateful to Him who had made this work become possible complete.
Then, I would like to express my deepest appreciation to all those who provided me the possibility to complete this report. A special gratitude I give to my final year academic project supervisor and also my lecturer, Dr. Resali bin Muda, whose contribution in stimulating suggestions and encouragement, helped me to coordinate my project especially in writing this academic project.
Next, as regard to my beloved family, the most important person in my life, my parents, Mohd Noor bin Omar and Fauziah binti Md Sharif. Then, not forgotten to my beloved siblings Abidah Aqilah binti Mohd Noor, Nurfathiyyah binti Mohd
Noor, Mohd Syamil bin Mohd Noor and Mohd Nabil bin Mohd Noor. Without all of them, I would not have spirit to undergone this academic project.
Furthermore, I would also like to acknowledge with much appreciation the crucial role of the staff of Faculty of Syariah and Law, Islamic Science University of
Malaysia, who gave the permission to use all required equipment and the necessary materials to complete the task. Special thanks go to the rest of the lecturers and all my colleagues who help me to embrace the idea and gave suggestions about the research.
Last but not least, many thanks go to the Dean of faculty, the Head Program whose have invested his full effort in guiding us in achieving the goal. To all my colleagues, lecturers, I would like to send my deepest gratitude to all of you and ask for forgiveness from my fault. I would like to take this chance to wish all of you the best in your undertaking future.
iv
ABSTRAK
Kajian ini dijalankan adalah bertujuan untuk mengenalpasti kemungkinan untuk melaksanakan undang-undang Diyat dalam system undang-undang jenayah di
Malaysia. Kajian ini juga dijalankan dengan melakukan perbandingan keberkesanan antara undang-undang jenayah Malaysia yang diambil daripada undang-undang British dengan undang-undang Diyat dalam Islam. Kajian ini mensasarkan perlaksanaan yang bersifat umum kepada seluruh rakat Malaysia dan tidak hanya dilaksanakan dalam kerangka bidang kuasa undang-undang Syariah yang terbatas seperti yang diamalkan sekarang. Kajian ini juga bertujuan untuk mengkaji keberkesanan undang-undang jenayah semasa di Malaysia dalam memberikan keadilan yang setimpal dan sokongan kepada keluarga mangsa kes menyebabkan kematian terutama kes bunuh. Kajian ini juga akan melibatkan perbincangan tentangan
pembahagian
saksama
nilai
keadilan
dalam
pernghakiman oleh mahkamah dengan membandingkan pembahagian tersebut antara konteks undang-undang British dan undang-undang Islam.
v
ABSTRACT
The study is to examine the possibility to implement the law of blood money under Malaysian criminal legal system. It is also to compare the Malaysian current legal provision that was brought and developed under British law with the blood money system. It also looks into plural implementation of blood money in civil jurisdiction rather than inserting thereof into the current Syariah criminal jurisdiction. This research is confined to the study of implementation of blood money in homicide case especially in murder. It is also the purpose of this research to examine the effectiveness of current Malaysia criminal law in giving justice and mollifying the family member of homicide victim. This research will also include the discussion on the distribution of justice between British law system and Islamic law system.
vi
ملخص البحث
هذه الدراسة هو دراسة إمكانية تطبيق القانون الدية اإلسالمية يف إطار النظام القانوين اجلنائي
املاليزي.و يدخل فيها املقارنة بني القانوين اجلنائي احلايل اليت جاءت من إطار القانون الربيطاين و
نظام الدية و يبدو أيضا يف تنفيذ جلميع املواطن ماليزيا من الدية يف القضاء املدين بدال من إدراج
ذلك يف والية قضائية جنائية الشرعية احلالية. يقتصر هذا البحث على دراسة تنفيذ الدية يف حالة
القتل خصوصا يف القتل العمد. بل هو أيضا الغرض من هذا البحث إىل دراسة فعالية القانون
اجلنائي ماليزيا احلايل يف إعطاء العدالة والتهدئة أفراد األسرة للمقتول. وسوف تشمل هذه الدراسة
أيضا مناقشة املبدأ توزيع العدالة بني نظام القانون الربيطاين ونظام الشريعة اإلسالمية.
vii
LIST OF CONTENT
Content
Page
AUTHOR DECLARATION
i
ACKNOWLEDGEMENT
iii
ABSTRAK
iv
ABSTRACT
v
MULAKHAS AL-BAHTH
vi
LIST OF CONTENT
vii
LIST OF CASES
ix
LIST OF STATUTES
x
LIST OF TRANSLITERATIONS
xi
LIST OF ABBREVIATIONS
xiii
CHAPTER ONE: RESEARCH PROPOSAL
1.1 Background of Research
1
1.2 Statement of Problems
1
1.3 Objective and Aim of Research
3
1.4 Research Methodology
3
1.5 Literature Review
4
1.6 Scope And Limitation Of Research
6
CHAPTER TWO: INTRODUCTION
2.1 Justice as the Aim of Any Law
8
2.2 The Nature of Justice in Homicide Case
10
2.3 Archaic Dichotomy of Crime and Tort
12
CHAPTER
THREE:
EXHAUSTIVE
PUNISHMENT
FOR
HOMICIDE UNDER MALAYSIAN LAW
3.1 Provision of Homicide in Act 574 of Penal Code of Malaysia
15
3.2 Provisions in Act 593 of Criminal Procedure Code of Malaysia
17
3.3 Effectiveness of Punishment for Homicide Case
20
viii
CHAPTER FOUR: PRACTICES OF BLOOD MONEY LAW IN
HISTORY AND CURRENT
4.1 Blood Money Law in History
23
4.2 Blood Money Law in Current Practices
29
4.3 Real Cases Study
31
CHAPTER FIVE: IMPLEMENTATION OF BLOOD MONEY LAW
5.1 Murder in Compatibility with Malaysian Penal Code.
35
5.2 The Law of Diyat in Islam
38
5.3 Single Litigation
40
5.4 Impecunious Offender: Takaful replacing the system of ‘Aqilah
42
5.5 The Law of Diyah & Takaful v No-Fault Liability Scheme
48
5.6 Blood Money as the Alternative Punishment and Not as a Mere
Additional Punishment
5.7 Plural Administration
49
52
CONCLUSION: SUGGESTIONS AND RECOMMENDATIONS
54
BIBLIOGRAPHY
61
ix
LIST OF CASES
Case Citation
Page
Public Prosecutor v Low Lu Keng Muar, High Court Criminal Appeal No.
42-8-1990
23
x
LIST OF TABLE
TABLE
TABLE 1: Calculation of Diyah
Page
29
xi
LIST OF STATUTE
Name of Statutes
Penal Code [Act 574]
Federal Constitution of Malaysia
Criminal Procedure Code [Act 593]
Pakistan Qisas and Diyat Ordinance 1991
Page
1, 16, 17,18, 49
20, 41
17, 19, 20, 22,
41, 55, 57
30
Sudan Criminal Act 1991
30
Iran Chapter on Hudud and Qisas
30
Kelantan Syariah Criminal Code (II) Enactment 1993
30
xii
LIST OF TRANSLITERATION
ARABIC LETTERS
TRANSLITERATION
أ
a
ب
b
ت
t
ث
th
ج
j
ح
h
خ
kh
د
d
ذ
dz
ر
r
ز
z
س
s
ش
sy
xiii
ص
s
ض
dh
ط
th
ظ
zh
ع
‘
غ
gh
ف
f
ق
q
ك
k
ل
l
م
m
ن
n
و
w
ه
h
ي
y
xiv
LIST OF ABBREVIATION
AC
Appeal Court
All ER
All England Report
Anor.
Another
BLR
Building Law Report
Cap
Capital
CJ
Court Judge
CLJ
Current Law Journal
Cox CC
Cox Criminal Cases
Cr App
Court Appellate
DPP
Deputy Public Prosecutor
FC
Federal Court
HL
House Lords
J
Judge
JP
Justice of the Peace Reports
xv
KB
King’s Bench
n.a.
No author
MLJ
Malayan Law Journal
Ors.
Others
P.B.U.H.
Peace be upon him
PP
Public Prosecutor
R
Rex
QB
Queen’s Bench
SCR
Supreme Court Reports
SLR
Singapore Law Reports
Sya
Syariah
Vol.
Volume
YA
Yang Arif
1
CHAPTER ONE: RESEARCH PROPOSAL
Background of the Research
It is the aim of law to serve justice to anyone who resorted to it. The denial of justice whether in enacting a law or its administration will defeat the purpose of the law and may bring society into unstable circumstance. From ages, jurists have been discussing the meaning of justice and how the law should be enacted to serve the meaning.
For the purpose of the study, a concern is to be made on serving justice for the victim’s family members for homicide case. They are the individuals who adversely affected from the tragedy - mentally and physically affected.
To mollify the family, a substantial law as well as procedural law need to be amended and enacted with the aim to cure the pain conjured by the tragedy.
One of the ideas is by the implementation of blood money law. Blood money is pecuniary compensation paid by the convicted person in homicide or hurt or abetment case to his victim, and the case of homicide, the family member of the victim. The objective is to serve justice to the most aggrieved part of the society – as law meant to secure the public interest – which is the family member of the victim. By that, the justice is more addressed than imposing the death penalty or paying the statutory fine exclusively into government fund.
Statement of Problem
2
Section 302 of Malaysian Penal Code provides death penalty as punishment for convicted person of murder. Then, Section 304 and 304A provides punishment for whoever commits culpable homicide not amounting to murder with imprisonment up to thirty years, and shall be liable for fines, or with both, depends on the element of crime committed by convicted, analyzed by the court. None of the sections is directly giving power to court to compensate the family victim under Penal Code. The purpose of criminal justice to seek justice for the public interest seems to undercut somewhere here. The author believes the reasons of the problem are the following:(1) A reconstruction of the suitable punishment is a must to search for a better punishment that gives real benefit to the public security and interest without jeopardizing the meaning of justice. It involves in depth study and research. Furthermore, the track of legal jurisprudence is not lacking from alternatives for homicide offence other than mandatory death penalty and expensive term of imprisonment supported by tax payer money.
(2) The dichotomy of criminal and tort litigation which prohibit the private claim resorted out of criminal trial. A second litigation need to be brought to the court by the affected parties and in this case, the family members of the homicide victim to compensate their lost. This means the justice for aggrieved victim’s family is not financially free and having quick result, though the criminal has been convicted as the first place.
3
(3) The lack in law to empower judges to give discretionary additional and/or alternative punishment, in example, to order compensation to be paid by the accused to the family of the victim after the conviction, will deny the justice of the family.
Retribution by its sole does not guarantee the pursuit of serving justice to the community achieves the adequate distribution of justice. (4) The strict and severe punishment of death penalty for murder case is come without alternatives in the case where if the convicted felon is the member of the family. It means rather than mollify the loss of one family member, the family need to face second loss if the killing was convicted by the court, rather than other additional and alternative ways of punishment being provided. Objective and Aim of Research
The objective of the research is to analyze the exhaustive punishment for homicide in Malaysia and relatively to propose the implementation of blood money system. It is also the aim of the research to serve as guiding material for society, members of Parliament, judiciary and law enforcement authorities for future proper administration of justice toward victim’s family member for homicide case who adversely affected by the killing of their family member.
Research Methodology
4
The method adopted in formulating this research is analytical. It will be conducted by examining and comparing between Malaysian current criminal justice system with the concept and law of blood money in administration of justice for family member of homicide victim. For the final, an understanding based on knowledge from modern and classical jurists will be suggested and recommended for the improvement of law, apart from reliance on statutes, reference books, articles, journal, decided cases and reported cases.
Literature Review
There are several articles and references written on this subject. Some of the article is very relevant to this research, while some of them are not directly connected to it but still can useful to support some part of it.
One of the significance element of blood money law is it acts as compensation to mollify the loss of the victim’s family. In an article written namely “Capital Punishment in Malaysia and Globally: a Tool or Justice or a
Weapon Against Humanity”1 by Dr Noor Muhammad & ors, a remark has been made that it is good to be aware that the current law can only offer death penalty for murder case but disregards the welfare of the family members.
They are the ones who commonly depend on income of the deceased. The article emphasizes also on how appropriate to have system where widow with several children can receive temporary support by an order of blood money by the competent court. The article however only covers in surface and particularly to support the alternative punishment in lieu death penalty.
1
[2012] 1 LNS (A) XX
5
To implement the blood money law, numbers of written laws need to be amended. In the book namely “Administration of Islamic Law in Malaysia” by Farid Suffian, the book particularize the affected laws that should be enacted, amended and gazette to implement Islamic law, and for the purpose of this research, the Diyat law. However, it focuses on total reformation of the whole system of law – from secular to full fledge Islamic administration of justice. It is to be noted, that the process would take a long journey and political will. It is important to note that political will is so often attributed to manipulation as well as speculation. Thus, a moderate and intermediary approach is an appropriate introduction to test and to work on the compatibility of our law system with Syariah, for a long term benefit – since the focus of the research is particularly to start the ambition with systematic compensation to victim’s family member.
It is clear that except by the way of double litigation, there is no legal right under any laws in Malaysia for victim’s heirs to get compensation out of a criminal trial. In book of Pentadbiran Keadilan Jenayah di Malaysia written by Roslan Mat Nor and Zamani Haji Sulaiman, the writers lays down the current punishment of criminal justice in Malaysia. In addition, reference also being made to a book namely “Criminal Procedure” written by Francis Ng Aik
Guan. As expected, none of the punishments alternatively allow pecuniary compensation to be order by court to mollify the victim family in a single trial except under inadequate practice of section 462 of Criminal Procedure Code.
Moreover, the latest amendment on section 462(1A) was not included under the discussion. Thus, it gives the clear view to what extent that how the current
6
criminal justice court is able to bring justice to the family member of homicide victim. Such lacuna leaves the victim’s heir with no justice other than retaliation element by the way of mandatory death penalty sentenced on the convicted felon. In an article written by Dr Syed Ahmad SA Alsagoff namely
“Victim Compensation For Homicide For All Malaysian”, the writer wrote about the outcry of the society particularly the aggrieving family of the deceased who left uncompensated in the current criminal law framework. He talks about the origin of the blood money system as an opposite to the archaic dichotomy of criminal and tort for an offence against the person derived from classic jurisprudences. He shows a parallel understanding of most monotheism teachings in accepting the concept of blood money as the true way and proper addressing of justice to the law abiding citizens. He does reiterate on mechanism of implementation of the concept without specifying particular laws need to be changed or enacted. Lastly, he suggest that the implementation should be made in plural system of law but in singular form, covering both
Muslim and non-Muslim citizen based on his reading on Malaysian multicultural environment.
The Scope and Limitation of the Research
This research covers only the arguable justice behind the archaic dichotomy of criminal and tort law for homicide case, the exhaustive legal provisions applicable in Malaysia and to what extent such provisions provides justice and benefits the victim’s family member. Likewise, the research will only cover the implementation of blood money law in Malaysia legal system.
7
The discussion on other Syariah criminal laws such Hudud, Qisas and Taazir will be excluded from the main discussion. This is because of the limitations this research has, and Hudud, Qisas and Taazir are so wide to the extent that this research cannot accommodate them all.
Furthermore, it looks into the applications of blood money in implementing states and differences between this application and current
Malaysian legal system. Finally, suggestion and recommendations are made for solving the problem of implementing blood money law.
8
CHAPTER TWO: INTRODUCTION
Justice as the Aim of Any Law
Justice is the utmost aim in legal administration. There is argument between analytical jurisprudence and normative jurisprudence pertaining to what is the meaning of justice. The former jurist reiterates on how the administration of justice conforms to laws enacted by socially-accepted lawmakers, whilst the latter stands that the virtue of justice is a norm above of any law and conforms with holy books, intellectual reasoning and origin of nature, understandable by reasonable human beings, worldly accepted by human communities, as Aristotle said, “the unjust law is not the law”.
Despite of this difference, both even every jurist of legal theory agree that the law must be something that is accepted by the society, enacted by the majority, or decreed by their representative, to serve and to protect the society after they had given their loyalty and obedience, or by assurance through their contribution in the form of paying taxes. Failure to serve the community by becoming injustice will render the authority being overthrown by democracy or by revolution or by other means as the signals for such social rejection because of such unjust law.
According to H.L.A Hart in his famous book The Concept of Law, while he wrote about the concept of justice, he said:
“One is when we are concerned not with a single individual’s conduct but with the way in which classes of individuals are
9
treated, when some burden or benefit falls to be distributed among them. Hence what is typically fair or unfair is a “share”.”2
According to Justinian, justice is the virtue which results in each person receiving his due, by producing excellent, definite and good result.3 Aristotle in Nicomachean Ethics interprets justice as giving one what is due to him and giving one what is his own. 4 Ulpian also reiterated that the basic precepts of the law is: ‘honeste vivere, alterum non laedere, suum cuique tribuere’, which roughly means that the law should cause one to live honestly, not to harm another and to give to each person his or her due.5
The same principle is upheld by Islam. It is considered as ‘Amanah
(trustship) to distribute the justice to the appropriate parties. Allah SWT says in al-Quran:
ِ
َِْ
ِ ْإن اللَّه يَأْم ُكم أَن تُؤ ُّوا اْلَمانَات إِلَى أَهلِها وإِذا حكمتُم بَ ْين النَّاس أَن تَحكموا بِالَْع
َ ْ َّ َ ُرُ ْ ْ َ د
ُُ ْ ْ ِ َ ْ َْ َ َ َ َ ْ
ِ
ِ َ َ َّ ِ ُ ِ َّ ِ
َّ
ًإِن اللَّهَ نَِعما يََعظُكم بِه إِن اللَّهَ كان سميَعاً بَصيرا
َ
ْ
Indeed, Allah commands you to render trusts to whom they are due and when you judge between people to judge with justice. Excellent is that which Allah instructs you. Indeed, Allah is ever Hearing and Seeing.(Surah al-Nisaa’:58)
2
Hart, H.L.A. 1997. The Concept of Law. New York: Oxford University Press Inc. 2nd ed.
p.158.
3
Haswira Nor Mohamad Hashim & Anida Mahmoor. 2009. Law, Morality, Justice, Freedom and Equality: The Underlying Concepts. Malaysia: McGraw-Hill. p. 98.
4
Prof. Hari Chand. 2011. Modern Jurisprudence. Petaling Jaya: International Law Book
Services. p. 257.
5
J.H. Farrar & A.M. Dugdale. 1990. Introduction to Legal Method. London: Sweet &
Maxwell. p. 259.
10
Justice or ‘adl in arabic term also means placing something in its rightful place.6 According to al-Sarakhsi, justice is ranked as the most noble acts of devotion next to belief in Allah; it is a greatest of all duties entrusted to the Prophets.7 Hence the justice is something that should be shared by the society. The implementation of certain laws should strive on basis of social distribution of justice’s share, if we can say like that. The very meaning of justice is to be shared not in an equal proportion for each respective class, as the discrimination is not to “treat like cases alike”, but to restore via unique leftovers of damage caused by a crime or wrongdoing against the members of society. The Nature of Justice in Homicide Case
From the above deduction, we are now applying in discussion of proper sanction for homicide case, particularly the murder case. While determining the punishment of the murderer, 5 classes of justice need to be addressed. They are for:
1. Deceased victim
2. The murderer him or herself;
3. The family members of the victim or deceased.
4. The society of which the murder happened.
5. The government of which is elected by the society.
By looking to the current situation in Malaysia, the punishment for murder case is imposed either in substantial term of imprisonment, fine and death
6
Mohamamad Hashim Kamali. 1999. Freedom Equality and Justice in Islam. Petaling Jaya:
Ilmiah Publisher Sdn. Bhd. 140.
7
Ibid. p. 147.
11
penalty. In countries who practice mandatory death penalty, they claim justice had been served if they put the murderer on the death row. By such sentence, the justice for victim is upheld by retaliation, for victim’s family by the same mean, for society by protection and notification that a punishment had been sentenced, and for government that its integrity and respect gained by administration of public needs.
However, mandatory death penalty does not really served justice accordingly, as asserted by at least two side of progressive legal movement.
First, the movement of abolishment of capital punishment is condemning the any means of law to deprive the sanctity of human life. Even the European
Union had decreed that to participate and enjoin with their fraternity, a country must abolish death penalty in its legal system. Secondly, the Islamist movement at all-time strive with the fullest effort to justify the wisdom of blood money provided in al-Quran and As-Sunnah as quasi-judicial right of victim’s family in determining the sentence for the murderer.
The latter is the author current concern. The right to compensation of victim’s family member is the mechanism of justice for the part of society which is most adversely affected by the tragedy. In addition, in Islamic criminal justice, death penalty is not a mandatory in nature. This somehow in some degree conforms to the agenda to abolish capital punishment as the alternative and additional punishments are enacted to deal with murder cases.
Islam protects the public interest by giving the right to determine punishment for murder case offender in the hand of victim’s heirs. Hence, the
12
role of court is only to decide whether the offender is guilty of murder offence.
The heirs can choose the following alternatives punishments:
1. Imposing capital punishment; or
2. Accepting diyat (blood money); or
3. Pardoning the convicted.
Another issue to discuss here is in Islam originally the murder case is decided in single litigation process. It opposes the current situation that requires double litigation because of archaic dichotomy of crime and tort law. This is an ineffective pursue of justice since the mourning family had to bear financial burden in private suit for a compensation that yet to be guaranteed.
It is suggested as in practice of European inquisitorial mode of trial, any person who has legal interest in a murder case, for example, the family’s victim could ask for the compensation right after a conviction is decided by a judge. We also should be noted by the provision of victim’s impact statement recently added into our legal system; a statement of family’s victim can be taken to consideration to determine the sentence of the convicted offender in murder case.
Archaic Dichotomy of Crime and Tort
In Islam, the right to sentence capital punishment is not vested in judge neither in Yang di Pertuan Agong or Rulers of States, which totally different from what has been practicing today in Malaysia legal framework. What we are practicing today is the effect of rise of kingship and the organization of
13
royal courts led to the eventual change of homicide from a wrong remedied by compensation to the victim’s family, to a crime punished by the state with death, imprisonment or fine. This transformation despondently resulted in the loss of the victim’s family right to compensation.
Dated back to the original position for homicide case, killing a person is considered as a wrong payable rather than a crime. It covers all type of killing either intentional or unintentional. The law was looking to the external act rather than intention This is not only derived from Islamic law perspective.
It is also derived from Anglo-Saxon and Germanic communities. However, by the influence of clerical judge of the churches, that in the case of unintentional killing, the slayer paid no compensation to the kin of the victim for their forgiveness. The church had placed greater reliance on the evil inclination of the offender.
In the end, the King claimed the whole sum payable with the result that the law regarded the act that engendered the liability to make payment as a wrong to the sovereign. The fact is ever was a wrong to the subject sank into oblivion. Punitive justice superseded civil jurisdiction; the tort had merged into the crime. The victim’s family has to see the matter as someone else’s business. It then led to double litigation. The court will consider the case in separate proceedings, criminal and tort case, placing another unguaranteed outcome for the family of the victim, especially when it comes to admissibility of evidence and finding adduced in criminal case whether it can be readmit for
14
the benefit of the tort case and to high possibility of lengthy administration for a private suit. 8
This apparently was result of class struggle between rulers and the people as proposed by the jurist, John Stewart Mill. The rulers wanted an upper hand to govern and control the people and the people on the other hand wanted to get out of the clutches of the rulers.9 At the demise of people liberty, the rulers may demand the control over the people interest even to the extend by clothing their political judgment with religion and crooked value of morality in favour of them. This is of which in this current context the right of the victim’s heirs to get compensation out of homicide case.
8
Alsagoff, Syed Ahmad S.A. 2006. Al-Diyah as Compensation for Homicide and Wounding in Malaysia. Kuala Lumpur: International Islamic University Malaysia (IIUM). p.92-93.
9
Prof. M.R. Zafer. 1994. Jurisprudence: An Outline. Kuala Lumpur: International Law Book
Service. p. 77.
15
CHAPTER THREE: EXHAUSTIVE PUNISHMENT FOR HOMICIDE
UNDER MALAYSIAN LAW AND ITS EFFECTIVENESS
The author divides this chapter into two parts;
1. Firstly, provision of homicide in Act 574 of Penal Code of Malaysia
2. Secondly, provisions in Act 593 of Criminal Procedure Code of
Malaysia and relevant cases law.
Provision of Homicide in Act 574 of Penal Code of Malaysia
The definition of murder is stated in section 300 of Penal Code. The section reads as follows:
Except in the cases hereinafter excepted, culpable homicide is murder— (a) if the act by which the death is caused is done with the intention of causing death;
(b) if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused;
(c) if it is done with the intention of causing bodily injury to any person, and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or
16
(d) if the person committing the act knows that it is so imminently dangerous that it must in all probability cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death, or such injury as aforesaid.
To understand the definition better, Penal Code has provided illustrations afterward. Basically, it is an intentional or premeditated killing, of which if one is found guilty thereof he will be liable to death penalty. The punishment for murder is death, as provided for under section 302 of the Penal Code.
Next, the definition of culpable homicide is provided under section
299. It reads as follows:
“Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide” It is crucial to note the definition of culpable not amounting to murder is provided under section 299, because generally a killing is a culpable homicide and murder is a kind of that homicide, that is why section 300 starts with “Except in cases hereinafter excepted, culpable homicide is murder”.
Meaning to say section 300 is a species and an exception to section 299.10
10
Shamrahayu Bt. Ab Aziz. 1993. Law of Murder: A Comparative Study of Malaysian Law,
English Law and Islamic Law. (Master Thesis). Petaling Jaya: International Islamic University
Malaysia. p. 2.
17
The punishment for culpable homicide not amounting to murder as provided under section 304 is as follows;
a) Imprisonment for a term which may extend to twenty (20) years, and shall also be liable to fine, if the act by which the death is caused is done with intention of causing death, or of casing such bodily injury as is likely to cause death: or
b) imprisonment for a term which may extend to ten years or with fine or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.
Afterward, Penal Code provides under section 304A the offence of causing death by rash or negligent act not amounting to culpable homicide. The punishment for such offence is imprisonment for a term which may extend to two years or with fine or with both.
Provisions in Act 593 Of Criminal Procedure Code Of Malaysia
Despite the list of punishment set for homicide case as provided under
Penal Code, and apart from claim made out of private suit by affected party from a homicide case, it is a surprise finding where provision of section 426 of the Criminal Procedure Code gives the court power to grant compensation to any person or the representatives of any person injured in respect of his person by any crime or offence.
In addition, section 173A(3) of the same Code, provides where the court has power to order the offender to pay such compensation for injury or
18
for loss (not exceeding the sum of fifty ringgit). These sections of law have impressed the author to further explore how exhaustive our criminal justice practices had served the justice for the victims of homicide case or their family members. Unfortunately, cases decided under section 426 were in scarcity yet the relevant case of homicide is PP v Low Lu Keng.11
It was an interesting development case in 1992. A High Court in
Malaysia made an unprecedented criminal compensation order for homicide in the unreported case of PP v Low Lu Keng. The Respondent faced the charge of committing the offence of culpable homicide not amounting to murder punishable under section 304 of the Penal Code. He was 19 years old at the time of the incident. He pleaded guilty. Upon conviction the court released him on RM10,000 bond with one surety under section 294 of the Criminal
Procedure Code (First Offender). The Deputy Public Prosecutor appealed against the sentence to the High Court. The High Court confirming the sentence passed by the Lower Court ordered that the respondent pay a sum of
RM 10,000 as compensation to the widow of the victim under section 426 of the Criminal Procedure Code.
The Malaysian court’s decision in PP v Low Lu Keng was a novel development for four reasons as follows:12
a) It is in conformity with Islamic law of diyah that provides compensation for victims of homicide.
11
Muar High Court Criminal Appeal No. 42-8-1990. Alsagoff, Syed Ahmad S.A. 2006. AlDiyah as Compensation for Homicide and Wounding in Malaysia. p.98.
12
Ibid. p. 102.
19
b) It was a decision by a non-Muslim judge against the respondent, a nonMuslim to pay compensation to the victim’s wife, also a non-Muslim.
c) The respondent paid the sum of RM 10,000. As he was only 20 years old at the time of the appeal, one wonders whether the money came from his or his parents. If it was from his parents, which appears to the case, it conforms to the Islamic law of diyah that for homicide not amounting to murder, the Aqilah (relatives) of the accused shall bear the responsibility of paying the compensation due.
d) The decision had resulted in the victim’s family having to attend only one trial to obtain redress. The court’s award of compensation the victim’s family avoided double litigation.
Recently, The Criminal Procedure Code (Amendment) Act 2010
(Amendment) Act 2010 came in the spirit of resolving the backlog of cases and promoting speedy trials, which is a reflection of the Government
Transformation Programme. It comes with new amendment on section 426 by adding subsection (1A). This new provision requires the Court, if the Public
Prosecutor applies for, to order the convict (or the parent or guardian, in case of a child convict) to pay monetary compensation to the victim or the deceased victim’s family. In assessing the quantum of compensation, the Court is empowered to hold an inquiry, and specific particulars must be considered including expenses and losses (including loss of income) suffered by the victim, and the convict’s financial capability to meet the compensation.13
13
Abu Daud Abdul Rahim. 14th January 2011. “Do We Have a New Criminal Procedure
Code?”. Criminal Law. http://www.malaysianbar.org.my/criminal_law/do_we_have_a_new_ criminal_procedure_code_.html 20
The author hopes that this new amendment would not be read conjunctively with section 173A(3) which only allows compensation to be paid to the injured party not exceeding RM50.00. This if it is happening would defeat the objective of the amendment and requires another amendment to section 173A(3) to refurbish the purpose. Therefore, the sections need to be interpreted disjunctively to secure the aim to compensate the victims of the crime and for the purpose of this study, the victim’s family of the homicide case. Effectiveness of Punishment for Homicide Case
In the current process of administration of criminal justice, when the commission of crime is reported to the police, a search is made for the perpetrator of the crime and prosecution sets into motion to get the accused convicted. In the process of trial the accused is considered a privileged person; he is accorded constitutional protection against illegal arrest and detention and is provided all possible help and legal aid. For example;
a) Article 5(1) of Federal Constitution provides that no person shall be deprived of his life and personal liberty.
b) Article 5(3) of the same law provides when a person is arrested he shall be informed as may be grounds of arrest and shall be allowed to consult and be defended by a legal practitioner of his choice.
c) Section 255 of Criminal Procedure Code deals with the right of legal representation at the trial stage.
21
Furthermore, the prevailing criminal justice seems to focus on reforming and rehabilitating offenders and every care is taken for the wellbeing of offenders while undergoing punishment. For example, The Prison Department of
Malaysia spends RM35 per prisoner per day.14 The system, however, hardly takes notes of victims of crime.
The victims of crime, apart from having to accept the punishment as avengement for the killing, is only required to their presence as witnesses. The plight of the victims is largely ignored. The victims here covering all person injured by the crime occurred. In most cases, the victims suffer injury, harm or death as a result of crime committed on them and the may incapacitated the victim temporarily or permanently to earn their livelihood or in the case of death the breadwinner is lost. Unfortunately, the state provides no help to the victim or his defendants; they are left to their deficient resources.
Although section 426 of CPC and some other statutes where empower the court after sentence has been passed to order compensation to victims of crime to be paid, there still no legal right for the victims or his dependents to claim compensation; it is a discretionary power of court. In addition, cases decided under such section is inadequate and provisions enacted for such purpose are meager and not comprehensive. The power also provides as additional sentences not as alternative sentence which may not prevent unnecessary bloodshed in the conviction of murder except by commutation of punishment granted by Yang di-Pertuan Agong or the Ruler of States.
14
Dr. Mohammad Akram. 2008. “An Approach To The Victims of Crime in Malaysia”.
(Paper). 5th Asian Law Institute Conference. Singapore. 22-23 May. p. 1.
22
Except by this frustrating condition, it is important to be noted that our criminal law system was built with the mixed theories of jurisprudence. It does not stand by a singular way of interpreting the justice and this is truly a good situation. Within the framework of democracy, any party with interest may advocate his idea into the judiciary even into the parliamentary to reshape the future law practicing. The same goes to the aim of this study.
At this very point, we have already witnessed that the right to compensate by victim’s family in homicide case was not totally rejected by our criminal law system. Section 426(1A) and section 173A provides power to court to order like an inquisitorial judge for compensation for victims and their family member by the court discretion. In the spirit of capital punishment movement upholding the sanctity of human life as well as the realistic and practical Islamist movement, justice for the victim’s family for all homicide cases especially the intentional murder shall begin to enshrine at the dawn of democratic system and universal human right.
23
CHAPTER FOUR: PRACTICE OF BLOOD MONEY LAW IN
HISTORY AND CURRENT
Blood Money Law in History
The implementation of blood money was widespread in the law of ancient communities. Homicide at the back was not seen as a crime against the state but as a tort or wrong against the victim’s family. This concept even for many centuries was an established practice in the field of criminal justice but was not given due attention in the present criminal justice system. . The followings are some example of traces of ancient documents providing the practice around the globe;15
a) In the Old Babylonian Kingdom of Eshunna in Upper Mesopotamia, blood money for the death caused in an affray was 2/3 mina silver.
b) In the Old Testament, it is duty of the next-of-kin to avenge the death of his slain relative.
The Numbers, 35:
“... or if in enmity he falls upon him with his bare hands and he dies, then the assailant must be put to death; he is a murderer. The next-of-kin is to put the murderer to death because he attacked his victim…”
c) In The Bible, for retaliation is provided three places in the Pentateuch:
a. Exodus xxi:
15
Alsaqoff, Dr Syed Ahmad SA. 2009. Victim Compensation For Homicide For All
Malaysians .[2009] 6 MLJ cxx. p. 2.
24
“…But where injury ensues, you are to give life for life; eye for eye, tooth for tooth, hand for hand, foot for foot;burn for burn, bruise for bruise, wound for wound…”
b. Leviticus xxiv:
“…If one person strikes another and kills him, he must be put to death…” c. Deuteronomy xix:
“…You must show no mercy; life for life, eye for eye, tooth for tooth, hand for hand, foot for foot…”
d) In al-Quran, it testifies the above laws for children of Israel;
Al-Maidah, 45:
“…We ordained therein for them: Life for life, eye for eye, nose for nose, ear for ear, tooth for tooth, and wounds equal for equal…”
The implementation of blood money law was not only enshrined in Abrahamic religions but established as well in other religions and ancient civilization. Dr
Syed Ahmad SA Alsagoff says;
In ancient Greece, the law of Charondas, which constituted the common law of Greece, treated wrongs to individuals as torts and laid down an elaborate scale of compositions.
In ancient China, retaliation by the victim's family was familiar to ancient thinkers. Mencius once remarked:
25
“..From this time forth I know the heavy consequences of killing a man's near relation. When a man kills another's father, that other will kill his father; when a man kills another's brother, that other will kill his elder brother. So he does not himself indeed do the act, but there is only an interval between him and it…”
The content and structure of the Tang Code (enacted in AD 653) became the model for codes of later dynasties. In the codifications of subsequent dynasties, the major legal penalties were the traditional five punishments, that is, the wu-ching. Death was the first of the five penalties. From as early as the Han Dynasty (600 BC), the punishment for a murderer in China was execution.
The law of feudal China largely influenced the oldest Code of Japan, the Tai-ho ritsu (AD 701). The Code regarded murder of a near blood relation or a near relation by marriage and murder attended with certain aggravating circumstances as atrocious crimes and expressly prohibited composition.
In Hindu law, aggravated forms of murder alone were capital crimes.
According to Manu, the killing of a man without circumstances of aggravation carried a fine equal to that for theft and according to
Yajnavalkya, homicide incurred the highest or the lowest amercement, depending upon the social position, character, conduct of the victim and other similar factors.
26
In Europe, between the fifth and the ninth centuries, legal codes were already in existence in the Germanic barbarian kingdoms and early medieval states. By the 17th century, the Lombards21 had expressly prohibit-ed blood-feud called faida and replaced it with a system of wergelds and compositions contained in the Lombard
Code (Leges Langobardorum). The Edicts of King Rothair (AD 643) provided that in the matter of composition for blows and injuries that were inflicted by one freeman on an-other freeman, composition was to be paid according to the procedure provided, the blood-feud being out-lawed. The Germanic barbarians' approach to violence was by enacting specific offences entailing specific penalties payable in recompense to the injured party. The Lombard Code contained a long tariff of compositions payable for very diverse physical injury.
Their approach to the offences committed against the individual or family was to placate the injured person or family (and thus averting the blood-feud), and not the punishment of the offender. The notion that of-fences against individuals might also be offences (crimes) against society had not yet appeared. The question was
not one
of punishment but of equal recompense for a loss suffered.
The Lombard Code, especially the Edicts of King Rothair, differentiated the amount of composition payable according to the social status of the victim. For the murder of a freeman, the wergeld
27
was one hundred and fifty solidi while a person 'of the first class' had a wergeld of three hundred solidi'.
The Lombard Leges used the Latin word 'homicidia' in the sense of both homicide and murder; although it sometimes further described murder as 'secret homicide' or morth. For murder, the offender must pay the wergeld of the murdered man plus a fine of nine hundred solidi. The taking of blood revenge after the payment of the wergeld composition required the payment of double the wergeld.
In the medieval law of England, the victim had the right to avenge himself against the offender. The slaughter of one by a member of another has been the sign for a blood-feud.
Pollock and Maitland mentioned the disposition of some writers in believing that the Anglo-Saxons vigorously prosecuted blood-feuds and there was a right of blood-feud where the slayer and his kinsfolk had made default in paying the dead man's wergild, the statutory sum that would atone for his death. Other writers spoke of an age when the law allowed the injured kin the option of taking money or taking blood. There was no doubt that the earliest laws of England set a price on life. It was clear that blood money played an important role in Anglo-Saxon law. In the words of Kemble:
Under Anglo Saxon law, a sum was placed on the life of every free man, according to his rank, and a corresponding sum on every wound that could be inflicted on his person, for nearly every injury
28
that could be done to his civil rights, honour or peace; the sum being aggravated according to adventitious circumstances. Like other ancient communities and the Anglo-Saxons in the times when bloodfeuds reigned in England, the pre-Islamic Arabs took vengeance upon the murderer if possible, or else they took revenge by killing any innocent person belonging to the murderer's clan.
The pre-Islamic Arabs based this system of revenge killings upon the understanding that a tribe was responsible for all unlawful acts committed by any individual member of the tribe. On this basis, the wali (next-of-kin) of the victim sought revenge from the offender and all members under the protection of the offender's tribe. The whole tribe and its chief make the retaliatory decision since they considered the killing of one of their members an insult to the honour of the whole tribe. For the sake of the tribe's honour and solidarity, any member of the victim's tribe could retaliate against any member of the slayer's tribe.16
The above lists of laws pertaining to blood money law were intended but to emphasize how established the law was and accepted by the world community of various civilizations and religion. The dichotomy of crime and tort in homicide was a legacy of British administration that woeful to mourning family victim. As has been stated in the Chapter One, homicide then treated as a wrong against the Crown, entitling the state with the fine but depriving the right of victim’s family to get compensation in single litigation.
16
Ibid. p. 3-4.
29
Blood Money Law in Current Practices
The blood money law is not existed but with long trait of practice. It is however practiced and influenced by several factors particularly based on how the legislators understand the concept of blood money. As has been mentioned earlier, the concept is not practiced only by Islamic countries but also otherwise. However, for the purpose of this topic, the author will make the comparison between several Islamic countries who applied blood money law in their system as well as with some commentary.
In Saudi Arabia, the format for the payment of blood money in homicide is as the following scheme17:
Table 1: Calculation of Diyah
The Price of a Full Diyat
Victim
1.
100,000 riyals
Muslim Man
2.
50,000 riyals
Muslim woman
3.
50,000 riyals
Jewish and Christian Man
4.
25,000 riyals
Jewish
and
Christian
woman
5.
6,666 riyals
Any other religion (Man)
6.
3,333 riyals
Any
other
religion
(Woman)
17
n.a. 1 of June, 2013. “Settlement Of Death Compensation Claims”. Death Cases Of Indian
Nationals.http://web.archive.org/web/20110724130457/http://www.cgijeddah.com/cgijed/Wel
fare/ deathbooklet.htm.
30
In Pakistan, under section 323 (1) of the Pakistan Qisas and Diyat
Ordinance, 1991 “PQDO 1991“ fixed the minimum value of diyah at one hundred and seventy thousand and six hundred and ten rupees (Rp170,610). It is the value of 30.630 kilograms of silver. The court shall keep in view the financial position of the convict and the heirs of the victim. The government has obligation to announce in July of each year the price of silver by notification in Federal Gazette. This is accordance to section 323 (2) of PQDO
1991. 18
In Sudan, under section 42(1) of the Criminal Act 1991 it provides that diyah is one hundred camels of different ages or its equivalent value in money.
The chief Justice has the discretion to determine its value after consultation with the competent bodies. In Iran, under section 3 of Chapter on Hudud and
Qisas Act it provides for diyah to be payable by the way of camels, cows, sheep, garments, dinars and dirhams. The offender can pay by way of any of the abovementioned without to mix them up. 19 On the other hand, in Clause 2 of the Kelantan Syariah Criminal Code (II) Enactment, 1993 a diyah is equivalent to the prevailing price of 4,450 grams of gold or such sum as may be fixed by His Royal Highness or the Sultan according to Syariah Law.20
As the conclusion, the price of diyat is different from one country to another. This is because of the different interpretation of Syariah text from
Prophetic traditions but still with the adherence to follow the supremacy of asSunnah. Thus, this divergence is not really material. In respect of
18
Alsagoff, Syed Ahmad S.A. . Al-Diyah as Compensation for Homicide and Wounding in
Malaysia. p. 188-189.
19
Ibid. p. 189
20
Ibid. p. 190.
31
implementation in Malaysia, the government may from time to time reassess the amount the compensation by reconciliation among the department of government particularly which under Attorney General Chambers, Department of Syariah Judiciary (JKSM) and National Fatwa Council (NFC).
Real Cases Study
It is important to note that no law comes without attacks on its virtue, concept and implementation. The reason of criticism is numerous. Some of it is due to emotional stigma and some of them are pure academic commentaries.
The critics are also from every group who concern with the implementation of justice. Thus, in the followings, the author cited some of real cases happening in Saudi Arabia which got worldly concern about the concept blood money law. In 1998, there was a case of murder on Yvonne Gilford who was murdered by Parry admitting having being the murderer and McLauchlan an accessory (though both subsequently claimed to have been coerced into signing the confession), and Parry was initially sentenced to death by beheading, and McLauchlan to eight years' imprisonment and 500 lashes.
Parry's sentence was reduced to life imprisonment after Gilford's elder brother
Frank accepted a "blood money" payment of approximately £750,000. 21 By the commutation of personal intervention of King Fahd, the death penalty has been commuted to time served in prison. This is the first case of execution of western woman in Saudi Arabia by the law of blood money. As a reflect to
21
n.a. 15th October, 1997. “Deal would have 'compensation' going to charity”. Money, not death, sought in murdered nurse case. http://edition.cnn.com/WORLD/9710/15/Australia
.nurse/
32
this study, this can be a model of plural administration of compensation covering the non-Muslim to victims of the crime to get involve in sentencing the convicted person and to get compensation to mollify the feeling of the heir of the victim. However it is to reserved that in Saudi Arabia they follow the school of Hanbali which does not recognize equality of life between a nonMuslim and a Muslim which is as far as this study is concerned, there should be plural administration especially on multicultural society in Malaysia.
In 2000, a Filipino man was sentenced to be beheaded for causing a murder of one Saudi men. He defended his action with self-defence as he said tried to sexually abuse him. However, the court rejected the defence. Then, he was detained in Dammam Jail in Saudi Arabia waiting for his sentence. This has sparked a world campaign for payment of blood money. Finally, the victim’s heirs had agreed the tanaazul (to accept blood money) and accepting for about 3 million Saudi Arabian Riyal (about $800,000) as the compensation.22 In correspond with study at hand, this shows that the payment of blood money is flexible and can be bore by any institution who want to save the convicted from the death penalty. This is also shows that the government will commute the death sentence subject to victim’s heir issuance of tanaazul.
There are also societies and movements who advocate the victim’s family to accept the blood money in lieu of death penalty to avoid unnecessary blood spill. 22
n.a. 29th May, 2013. “OFW on Saudi death row forgiven by victim's heirs – Binay”. Global
Filipino.http://www.abs-cbnnews.com/global-filipino/05/29/13/ofw-saudi-death-row-forgivenvictims-heirs-binay.
33
Next, in 2012 there was news on a girl had been killed after being sexually abused by her own father also was happened in Saudi Arabia. The activists said that the judge had ruled the prosecution could only seek "blood money and the time the defendant had served in prison since Lama's death suffices as punishment". Three Saudi activists, including Manal al-Sharif, who in 2011 challenged Saudi laws that prevent women from driving, have raised objections to the ruling. The ruling is based on national laws that a father cannot be executed for murdering his children, nor can husbands be executed for murdering their wives, activists said.23
In relation with study at hand, here the responsibility of the local government to impose adequate punishment to the father is at concern. To keep the social order and remove threat in the society, the government may impose corporal punishment or longer time served in prison. This is under the discretion of the judge under the law of Taazir. Another issue is pertaining to exception to punishment of retaliation when the killer is the father of the victim. It is the opinion of Imam Abu Hanifah, Imam Shafie and Imam Ahmad that the ruling is such so base on the hadith of the Prophet SAW who said, “A father shall not be punished with retaliation for causing death of his son”. The same also apply of a daughter.
However, according to Imam Malik this is only when a father with the intention of reforming his offspring but causes death of his offspring he shall not liable to punishment of death. Otherwise, if in absent of intention of
23
n.a. 4th February, 2013. “Saudi blood money ruling angers activists”. Middle East. http://www.aljazeera.com/news/middleeast/2013/02/201323223618362435.html. 34
reformation, he shall be liable to the punishment of retaliation. 24 Nevertheless, it is up the living heirs of victim to assist the judge to sentence the convicted murderer or to pardon him as they are the most affected group in society other than the public at large.
Another criticism is pertaining to racial discrimination in Saudi Arabia.
This had caused unfair perception toward its criminal legal system which will affect the whole framework of Islamic criminal justice if we intended to implement outside current practicing country. There is no much good will to be held out forward. In the case of Ruyati binti Sapubi, was beheaded with a sword on Saturday after confessing to murdering her boss as the Indonesian government also failed to get tanaazul (clemency) for her case. Indonesian media reports said she attacked her boss with a meat cleaver after being denied permission to return home.
It is in about 1.5 million Indonesians work in Saudi Arabia - many of them as domestic maids. Anger and outrcy has been growing in recent years over the treatment of migrant workers - particularly maids, who often complain of mistreatment.25 The same happened in the case of the execution of
24-year-old Rizana Nafeek of Sri-Lankan origin, has cast a spotlight on the plight of dozens of migrant workers on death row in Saudi Arabia. Nisha
Varia from Human Right watch said the Saudi justice system is characterised by arbitrary arrests, unfair trials and harsh punishments. She added migrants are at high risk of being victims of spurious charges. A domestic worker
24
Prof. Dr. Anwarullah. 2008. The Criminal Law of Islam. Kuala Lumpur: A. S. Noordeen. p.
76.
25
n.a 21st June, 2011. “Saudi Arabia in Indonesian maid beheading row”. News Asia-Pacific. http://www.bbc.co.uk/news/world-asia-pacific-13860097. 35
facing abuse or exploitation from her employer might run away and then be accused of theft. Employers may accuse domestic workers, especially those from Indonesia, of witchcraft. Victims of rape and sexual assault are at risk of being accused of adultery and fornication.26
So far as the criticism is concern, the attacks were only the administration of justice in countries implementing blood money law. It is not the blood money itself has been criticized. The Saudi should be more aware about the human right of every citizen including the foreigner.
27
Nevertheless, if
collateral issues are not dealt accordingly, it may politically jeopardize the very virtue of blood money law and accusing implementing such law to be a neo-colonization and extremism. One of the aim of this study is necessarily to cleanse the spoilt perspective of world community toward blood money law. It is up to now using the word “diyat” or “blood money” but replacing with more harmonious name of law but keeping the divine justice at the upper place.
26
Chamberlain, Gethin. 13th January 2013. “Saudi Arabia's treatment of foreign workers under fire after beheading of Sri Lankan maid”. The Observer. http://www.guardian.co.uk/world/
2013/jan/13/saudi-arabia-treatment-foreign-workers
27
Sherry, N. Virginia. 2004. Saudi Arabia: Bad Dreams, Exploitation and Abuse of Migrant
Workers in Saudi Arabia. New York: Human Rught Watch. p.14.
36
CHAPTER FIVE: IMPLEMENTATION OF BLOOD MONEY LAW
Murder in Compatibility with Malaysian Penal Code.
For the purpose of this study, some comparisons need to be conducted between the above statutory definitions of homicide from Malaysian Penal
Code with English Law and Islamic Law, apart from the definition of homicide under Penal Code of Malaysia had been early define in Chapter
Three. The comparison is important to show the compatible and harmonious origin of these three systems to ensure the suggestion and recommendations on punishment for homicide, tabled at the end of the study, are relevant and applicable in Malaysia.
(i) English Law’s Definition of Murder
Definition under English Law is not statutory but a crime at Common
Law. The classic definition of murder is that of Coke:
“Murder is when a man of sound memory and of the age of discretion, unlawfully kills within any county of the realm and reasonable creature in rerum natural under the King’s peace, with malice for thought, either expressed by the party, or implied by law, so as the party wounded, or hut etc. die of the wound, or hurt etc within a year and a day after the same.” 28
If we analyze such definition, we could find:
28
Edward Coke, Milite JC, Cike Institues, Part 3 &4, page 193. Shamrahayu Bt. Ab Aziz.
1993. Law of Murder: A Comparative Study of Malaysian Law, English Law and Islamic Law.
p. 4.
37
a) Who can commit murder,
b) Where murder can be committed,
c) Who can be the victim,
d) Death within a year and a day
e) Malice aforethought
(ii) Islamic Law’s Definition of Murder
According to the majority of the jurists murder in Islamic criminal law is of three kinds, namely;
i.
Intentional murder
ii.
Quasi-intentional murder
iii.
Murder by mistake
Imam Malik is of the view that murder is only two kinds, removing quasiintentional murder from the list. Imam Abu Haneefah opines that murder is of five kinds, adding (i) Murder equivalent to mistake; and (ii) Indirect murder.29
For the purpose of this research, only intentional murder is to be defined. It is a murder when a person willfully and with the intention of causing death makes another person the direct object of his result of that action. The jurists have stated that there are three basic conditions for intentional murder:
i.
The victim must be a living human being and protected (all Muslims, non-Muslim who permanently reside in an Islamic state, non-Muslims
29
Prof. Dr. Anwarullah. 2008. The Criminal Law of Islam. p. 33.
38
who are either in a treaty or not a at war with the Muslims and nonMuslims who enter an Islamic state with permission) human being, ii. The victim must have died as result of the action of the accused, and
iii.
The offender has willful intention of causing death of the victim.
According to Shamrahayu, basically the definition of of murder is similar under the three system of law, with few distinctions between them.
Particularly on (i) Statutory context, (ii) Express element of protection of that state (iii) element of death in a day and a year (iv) whereabouts of the murder
(v) who can commit the murder, (vi) intention of causing bodily injury which will cause death or likely to cause death.
30
Therefore for willful murder the
definitions are not really diverse and it is suggested that if they may fall under the same punishment, it will not hamper the theory of punishment to serve best justice for the community.
The Law of Diyat in Islam
Diyah is defined as payment of indemnity for killing and injuring a human being. Therefore, the word diyah as far as homicide is concerned denotes the amount of compensation paid to the next of kin of the deceased as substitute in cases of murder and as the original reparation in case of quasiintentional murder and killing by mistake.31 This concept is originated from alQuran and al-Hadith. Allah S.W.T says:
30
Shamrahayu Bt. Ab Aziz. 1993. Law of Murder: A Comparative Study of Malaysian Law,
English Law and Islamic Law. p. 7.
31
Shah Haneef, S.S.. 2000. Homicide in Islam: Legal Structure and the Evidence
Requirement. A.S. Noordeen: Kuala Lumpur. Abdul Rahman Bin Awang. 18th December,
2012. Diyah (Blood Money) as Substitution to Capital Punishment: An Attempt Toward
Harmonisation Between Shari’ah and Malaysian Penal Code. Aust. J. Basic & Appl. Sci.
39
ِْ ْ
ٍ ُِْ َ َ ََ
ْ ِ ُ َ ٍ ُّ ْ ِ ٍ َ ِ ة
ٌَوما كان لِمؤمن أَن يَقتُل مؤمناً إِالَّ خطَئاً ومن قَتَل مؤمناً خطَئاً فَ تَحرير رقَ بَة مؤمنَة ودي
َ ُِْ َ
ََ َ
ُ َ
ِ
َِ َ
ٍ ِ ْ ُّ ٍ
ِِ ْ
َّ َّ
مسلَّم ٌ إِلَى أَهله إِالَّ أَن يَصْقُواْ فَِإن كان من قَ وٍم عْو لَّكم وهو مؤمن فَ تَحرير رقَ بَة مؤمنَة
ُّ َ َ ة
َ ُ ِ ْ ٌ ْ ْ َ ُ َ ْ ُ ٍّ ُ َ ْ
ِ ْ ُّ ٍ
َِ َ
ِِ
وإِن كان من قَ وٍم بَ ْي نَكم وبَ ْي نَ هم ميثَاق فَْيٌَ مسلَّم ٌ إِلَى أَهله وتَحرير رقَ بَة مؤمنَةً فَمن لَّم
ُ ْ َ ُ ْ ِّ ٌ ِ ة ُّ َ َ ة
ْ
ْ َ
َ ُِْ َ ْ
َ
َِ
ِ
َ َِ ْ ِ ُ َ ْ َ ِ ُ َ ِ ْ ِّ َ ِ و
ًيَجْ فَصيَام شهريْن متَتَابَِع ْين تَوبَةً من اللّه َكان اللّهُ عليماً حكيما
َ
“And never is it for a believer to kill a believer except by mistake. And whoever kills a believer by mistake - then the freeing of a believing slave and a compensation payment presented to the deceased's family [is required] unless they give [up their right as] charity. But if the deceased was from a people at war with you and he was a believer - then [only] the freeing of a believing slave; and if he was from a people with whom you have a treaty - then a compensation payment presented to his family and the freeing of a believing slave. And whoever does not find [one or cannot afford to buy one] - then
[instead], a fast for two months consecutively, [seeking] acceptance of repentance from Allah . And Allah is ever Knowing and Wise” (An-Nisaa’: 92)
The traditional scholars are unanimous that the diyah for killing a free Muslim is one hundred camels against those own camels.
6(11):
p.108.
106-112,2012.
http://www.ajbasweb.com/ajbas/2012/Special%20oct/106-112.pdf
40
ِ
ِ َ
ِ َ ٍ ْ ِ ِ َ ِ ِ َّ ِ ِ ْ
ُعن أَبِي بَكر بْن محمْ بْن عمرو بْن حزم عن أَبِيه عن ج ِّه «أَن رسو ِ اللَّه - صلَّى اللَّه
َ
ْ
َُ
ُ َ َّ ْ َ ْ َ
ْ
َ
َْ
ِ
ِ
َّ َ
َِ ِْ
علَْيه وسلَّم - كتَب إلَى أَهل الْيَمن كِتَابًا، َكان فِي كِتَابِه .... وأَن فِي النَّ فس ِّيَة مائَة
ً ِ َ ْْ ِ ال
َ َو
َ َ َ ََ َ
ِ ِْ ْ ِ
من البِل
“Abu Bakar ibn Muhammad ibn ‘Amr ibn Hazm rhm reported from his father that the Prophet S.A.W. wrote a letter to ‘Amr ibn Hazm for the people of
Yaman wherein the Prophet S.A.W said “… the compensation of a life is one hundred camels”32
However, the jurist do not have consensus on the type of camel to compensate. Thus, it is suggested that the legislature could fix the value of the full diyah for homicide. This may be arrived at after consultation with various religious and social body as there is merit in having constant figures for all type of killing. The objective is to mollify the injured feeling of the victim’s relations. Islamic law also does not prohibit the court to impose time served to express a social condemnation of the murder act for the offender. This is but an example. It is to be noted that the penal sanction would be the secondary issue. The important is the welfare of the victim’s family.
Single Litigation
One of important feature in Islamic law on homicide case is that the trial is being conducted covering both the criminal and civil claim. This is
32
Al-Shawkani, Nailul Authar, Vol 5, Kitab Dima’, p. 2542-243: hadith 3972: Muwatta’
Imam Malik, Kitab al-‘Uqul: The Book of Blood Money. P. 337. Hadith 1474. Alsagoff, Syed
Ahmad S.A. 2006. Al-Diyah as Compensation for Homicide and Wounding in Malaysia. p.
163.
41
different with the current adversarial system in which prosecution and civil litigation must be done in two separate proceeding. This was caused by archaic dichotomy of crime and tort for offences against a person; a legacy inherited from British colonial. This will imbue more cost to the victim’s family when their wanted to get compensation out of their loss. Besides that, it will bring danger as the family may deter from asking their legal right due to financial constrain. Furthermore, there is also danger of limitation period for civil case expiring due to the victim’s family being ignorant of their right because in double litigation, the prosecution only cares about the criminal proceeding.
Single trial system will save legal cost, time consumption and financial constraint out of double litigation.33
It is surprisingly to know that in inquisitorial system single trial practice is normal. In French the victims of the crime play an active and integral role in investigation, testimonial statement and also the in sentencing.
After a conviction has been made, victims have right to give input to determine appropriate sentence to the convicted person. The victims are also permitted to address the court on the matter of appropriate compensation payable to them as integral part of criminal proceeding. The victims of the crime are actually assisting the court to determine the sentence for the convicted after the verdict had been delivered. 34
By understanding this reality, it will raise one question. Do we need to change our mode of trial to make the justice for the heirs of the victim in
33
Alsaqoff, Dr Syed Ahmad SA. 2009. Victim Compensation For Homicide For All
Malaysians. p. 6.
34
Vanya King. 17th March 2013. Criminal Procedure in Non Adversarial and Adversarial
Systems of Justice viewed from the Victim’s Perspective.http://www.aija.org.au/NAJ%202010/
Papers/King%20V.pdf. p. 2.
42
homicide case are served? This would be tedious process. Therefore, it is suggested that we optimize the current law available to us to implement or at least gives the basic foundation for blood money.One way to do this by making use the Victim’s Impact Statement under sections 173(m)(ii) and
183A, and power of the court to order compensation to victim under section
426(1A). These laws are new to our legislation. The victims of the crime would not only appear as witnesses to a proceeding but may give statement in assisting the court to impose sentence. The law also provides the power of the court to order compensation to victim of the crime especially for heirs of victim of homicide case. It is also suggested that in determining the amount of compensation, a court direction need to be made to rather than leaving the law to become the experiment of the lawyers. Authoritative bodies such Attorney
General Chambers, Muftis Officials and Department of Syariah Judiciary should convened and decide on the quantum of the compensation working as the guideline for the judges in deciding homicide cases.
Impecunious Offender: Takaful replacing the system of ‘Aqilah
Before the emerging of Islam in Arab’s land, during the period of
Jahiliyyah, a murderer is financially backed up by his tribe to pay the blood money to the victim of another tribe. This system is called ‘Aqilah. By using this system, the burden to pay substitute money out of clemency is shared among the members of an institution who vouch to pay responsibility of what their member had committed. Therefore, it will lessen the burden bears by the offender, giving more security to the victims of the crime and to signal
43
awareness and deterrence upon the offender’s tribe to be careful in the future undertaking and to avoid future bloodshed.
The word ‘aqilah is derived from the root word al’aqlu ) ( الَعقلwhich literally means an act of withholding or restraining. On juridical meaning, it signifies that the ‘Aqilah ( ( عاقلةby paying the compensation, restrain the legal heirs of the victim from being oppressed and complaining. Another meaning is, as in pre-Islamic era, the murderer or his tribes used to take camels as compensation for killing to courtyard of the next kin or the victim.35 ‘Aqilah is defined in Islamic law as agnatic male relatives of a person on his father’s side, or an institution or organization from which he receives or expects to receive support for help.
36
In Islam, this concept only applicable in the case
of quasi-intentional murder and murder by mistake. It is not applicable in the case of willful murder.
‘Aql is imposed not strictly by family bonding. It can be in various forms. The ‘Aql is imposed on those who are supposed to support (ahl nusrah) the killder by their silence or otherwise. Therefore, ‘aqilah may be:37
a) Al-Qarabah : Blood relationship with the murder.
b) Al-Hilf : Covenant to support the community.
c) ‘Aqd Mawalat : An agreement to share the burden of the other whether monetary or otherwise. It started in the beginning of
35
S.S.. Shah Haneef. 2000. Abdul Rahman Bin Awang. 18 th December, 2012. Diyah (Blood
Money) as Substitution to Capital Punishment: An Attempt Toward Harmonisation Between
Shari’ah and Malaysian Penal Code. p.109.
36
Prof. Dr. Anwarullah. 2008. The Criminal Law of Islam. p. 92.
37
Hasan, N. 1984. . Abdul Rahman Bin Awang. Ibid.
44
Islam, when a non-believer accepted faith on the exhortation of a Muslim, the two were bound by the agreement to help each other. Sarakhsi holds that acceptance of faith is only an illustration and not a condition of this kind of agreement and that any two persons can enter into ‘aqd mawalat.
d) Al-Wala’ : Inclusion of a freed slave in the family of the previous master.
e) Al-Qasamah : Imposition of voluntary collective fine for the payment of ‘aql.
f) Al-‘Idd : A counting a person as member of the group. Such a person might have immigrated and assumed customs and manners of the group so that he is identified with are for all practical purposes.
g) Al-Hirfah : A trading relationship. The members help each other and provide protection to fellow tradesmen.
Some people may be said that the system is a demise since the ‘Aqilah system is already being abandoned. Besides that, the family bonding is not as close as it was before. Many people become individualistic and capitalist because of globalization. However, should this unwarranted result be a constraint to justice being served? It should not be. Thus in the context of reviving doctrine of ‘Aqilah, an analysis need to be undertaken by looking to the various forms of ‘Aqilah. By understanding these of forms of ‘Aqilah, a specific scheme can be engineered to help the doctrine survive in modern
45
lifestyle without neglecting its virtues and justice. Therefore the followings are the proposition of result out this issue:38
(i) Ibn ‘Abidin concurred that since the mutual assistance has forgone, and Bait al-Mal is no more exist, thus the correct proposition is that the offender must make the payment by his own. (ii) Imam al-Nawawi reiterated that the burden of diyah cannot be imposed on the members of the confederate, not on the shareholders in a company, even not on the members in a social organization. However, they can organize themselves into class organization which protects them and pays the diyah on their behalf. This holds goof as an alternative particularly for
Muslim who live in non-Muslim states and they have no Bait al-Mal. (iii) Syeikh Abdul Qadir ‘Awdah suggested that the alternative is for the government to constitute a public taxation department whose levies should be allocated for redemption for such compensation to avoid heavy burden on the offender, to save his life from unnecessary blood spill and to avoid heavy burden on Bait al-Mal
From the above propositions, we may reconcile each of them into a practical scheme. It is suggested that the nowadays practice of Takaful would suffice this necessity. It is also akin to one of forms of ‘Aqilah which is al-
38
S.S. Shah Haneef. 2000. Abdul Rahman Bin Awang. Ibid .p. 110.
46
Hirfah. It should be noted that in current practice of Takaful the fund is being used by the Takaful provider in numerous trades and commercial activities to generate income which resemblances with the concerpt of mutual assistance under al-Hirfah.
It is also following the objectives of social insurance to provide welfare of the economically underprivileged and to lighten the burden of contingencies on the victims. Pertaining to social insurance, there is a number of scholars permitting it in Islam. Sheikh Abu Zuhrah said that social insurance which is instituted by the state whether for workers or salaried employees, whether limited to specific groups or applicable in general, are right and permissible.
Syed Ahmad S.A al-Sagoff added that the notion of insurance in Islam is indeed acceptable and there is nothing wrong in devising a system requiring each industry to those engaging in a particular activity (such as drivers of motor cars or surgeons), to pay a specific voluntary or compulsory amount monthly or annually, to collectively bear the burden of compensation for an unintentional harm committed by one of them in the course of his work, provided that insurance should not be for commercial gain nor bear any taint of usury or include any reasonable gharar (uncertainty).39 Al-Sagoff also added that it seems mockery that the law fully compensate a victim of mere negligence in a road traffic accident by legislating for mandatory motor
39
Abdul Rahman Bin Awang. 18th December, 2012. Diyah (Blood Money) as Substitution to
Capital Punishment: An Attempt Toward Harmonisation Between Shari’ah and Malaysian
Penal Code. p. 110.
47
vehicle insurance but leaves the victim of an unintentional act uninsured and usually uncompensated.40
According to Dr. Ahmad Al-Sagoff, if the social insurance scheme unable to be implemented, there is always possibility that the offender may not able to satisfy the compensation payable. This would lead to the victim’s family left uncompensated. Therefore, he suggested the state should compensate the victim’s family. He added is that the state could set up a special fund comprising of fines received for other criminal offences for this purpose.41 It is suggested by Dr. Mohammad Akram that it is a cogent argument for State to pay compensation to the victim because it has failed in its responsibility to protect his life and liberty. However, it is not of full compensation and leaves the offender free from his inherent liability. Thus compensation should be paid partly by the offender and partly by the State.
Then, the State should have right to put charge on the offender’s property to in lieu of payment made by the State. It is suggested that the fines imposed in cases of violation of environmental laws, smuggling or other public offences may be remitted to the compensation fund that can be created to provide compensation to the victims.
It is also suggested that another source could be the contribution of the offender’s earning during his period of incarceration. In order to raise earning it is necessary to establish industries in the prison that may increase the size and the productivity of the i9nmates. The first step which is required is that the
40
Alsaqoff, Dr Syed Ahmad SA. 2009. Victim Compensation For Homicide For All
Malaysians .[2009] 6 MLJ cxx. p. 6.
41
Ibid.
48
present laws regulating prison labour should be modified and market for prison products should increase in number and the co-operation of the business community should be obtained. 42
It is also pertinent to be reiterated that this assistance would not be provided to every convicted person. It is only for the impecunious offender.
Therefore, the orders of responsibility to pay the compensation to the victims of the crime are:
1) The offender himself or herself;
2) The ‘Aqilah, or in the proposed context, the social insurance fund
3) The government if the social insurance unable to be implemented.
The Law of Diyah & Takaful v No-Fault Liability Scheme43
There is another scheme of compensation which is modern and applied in several countries like for example New Zealand which is No-Fault Liability
(NFL).Under this system, every person who is a victim in an accident
(normally in car accident) having right to get compensation from a public fund. However, the definition of victim under this scheme is covering every person injured regardless the victim or the wrongdoer or the person who afflicted the injury to himself. This is contradict with the law of Diyaat in which the law of Diyat the self-victim and the wrongdoer is having to legal right for compensation under public fund.
42
Dr. Mohammad Akram. 2008. “An Approach To The Victims of Crime in Malaysia”.
(Paper). 5th Asian Law Institute Conference. p. 8-9.
43
Dr. Lukman Abdul & Dr. Asmawati Suhid. “Victimology Dalam Undang-Udang Jenayah
Islam: Sistem Diyat Sebagai Satu Alternatif Kepada No Fault Liability”. 2013. Hudud di
Malaysia: Cabaran Perlaksanaanya. Kuala Lumpur: Angkatan Belia Islam Malaysia (ABIM).
p.133 – 146.
49
According to former Bar Council’s President, Ambiga Sreenevasan,
NFL will educate a person to be irresponsible on the road where every road users will be compensated by the law regardless of their fault or had inflicted injury to other party. This is a distinct feature from law of Diyaat as notwithstanding in pursue of compensating the victims of road accident, the justice is still being distributed accordingly. Nevertheless, in spirit of plural implementation of law of Diyaat, any brand of scheme is not an issue. We can promote the law of Diyaat under the brand of Malaysia’s NFL with some modifications against its discrepancies. The most important is the delivery of wisdom entombed in the law of Diyaat.
Blood Money as the Alternative Punishment and Not as a Mere
Additional Punishment
Section 302 of Malaysian Penal Code provides mandatory death penalty for offender of murder case. It means there is no discretion on behalf of a learned judge to give alternate punishment once the case of murder has been proven beyond reasonable doubt except to sentence the convicted person on the death row. Section 426 (1A) provides a new provision replacing the old court power in section 426.
This new provision requires the Court, if the Public Prosecutor applies for, to order the convict (or the parent or guardian, in case of a child convict) to pay monetary compensation to the victim or the deceased victim’s family. In assessing the quantum of compensation, the Court is empowered to hold an inquiry, and specific particulars must be considered including expenses and
50
losses (including loss of income) suffered by the victim, and the convict’s financial capability to meet the compensation.44
In summary, it is clear that the compensation acts as the additional punishment but not as alternative punishment. The author believes that the best form of punishment is giving the alternative punishment in lieu of death penalty. This is by the reason of the sanctity of human life provided under article 5 of the Federal Constitution. Despite the phrase “except in accordance with the law” appears in the article, the author again believe that the exception of such right must reflect the actual need of society. And the need here should consider every member of a society. Therefore, it is suggested that we apply the law of blood money which giving the alternative punishment for willful murder case as a replacement for mandatory death penalty.
In Surah al-Baqarah, Verse 179, Allah SWT says:
واْلُنثَى
َ
ِ
ِ
ِ
ْيَا أَيُّها الَّذين آمنُواْ كتِب علَْيكم الْقصاص فِي الْق ْت لَى الْحر بِالْحر والَْع ْبْ بِالَْع ْب
َ
َ
َ ُ َ َ ِّ ُ ُّ ُ
ُ َ ُُ َ َ ُ َ َ
بِاْلُنثَى فَمن عفي لَهُ من أَخيه شي ٌ فَاتِّبَا ٌ بِالْمَعروف وأَداء إِلَْيه بِِإحسان ذَلِك تَخفيف من
ِّ ٌ ِ ْ َ ٍ َ ْ ِ َ َ ِ ُ ْ َ َ ْ ُ ِ َ ِ ْ ِ ِ َ ْ ء ع
ربِّكم ورحم ٌ فَمن اعتَْى بََعْ ذَلِك فَ لَهُ عذاب أَلِيم
َ َ ْ َ ْ ِ َ َّ ُ ْ َ َ ْ َ ة
ٌ ٌ ََ
O ye who believe! the law of equality is prescribed to you In cases of murder: the free for the free, the slave for the slave, the woman for the woman. but if
44
Abu Daud Abdul Rahim. 14th January, 2011. “Do We Have a New Criminal Procedure
Code?” Criminal Law. http://www.malaysianbar.org.my/criminal_law/do_we_have_a_new_criminal_procedure_code _.html
51
any remission is made by the brother of the slain, then grant any reasonable demand, and compensate Him with handsome gratitude, This is a concession and a Mercy from your Lord. after This Whoever exceeds the limits shall be In grave penalty.
From abovementioned verse, it is clear in our mind that for offence of murder, the provision for death penalty is immune because it is a divine law, unequivocally and clearly commanded by All Knowing and All Wise Allah
SWT for the benefit of mankind. Thus, once a command is clearly and unequivocally legislated in al-Quran, it is cannot be easily abolished or replaced by any kind of punishment, should there must be a brilliant wisdom behind the command. However, it is not a mandatory in nature.
The right to sentence capital punishment is not vested in judge neither in Yang di-Pertuan Agong or Rulers of States, which totally different from what has been practicing today in Malaysia legal framework particularly under article 41 of Federal Constitution and section 301 of Criminal Procedure Code.
As had early mentioned in Chapter Two, the system we are practicing today is the effect of rise of kingship and the organisation of royal courts led to the eventual change of homicide from a wrong remedied by compensation to the victim’s family, to a crime punished by the state with death, imprisonment or fine. This transformation despondently resulted in the loss of the victim’s family right to compensation.
Islam protects the public interest by giving the right to determine punishment for murder case offender in the hand of victim’s heirs. Hence, the
52
role of court is only to decide whether the offender is guilty of murder offence.
The heirs can choose the following alternatives punishments:
1. Imposing capital punishment; or
2. Accepting diyat (blood money); or
3. Pardoning the convicted.
The payment of blood money may be a better alternative for a family who lost their breadwinner out of murder. The welfare of a young widow and children’s future would be taken care of for a temporary period. This is but an example. This is effective to mollify the most aggrieved part of society which is the family’s victim even though human’s life is sacred and irreplaceable; still it is a better solution than paying fine to the federal fund. It is to be noted that nothing prohibits a state to impose penal punishment to the convicted for the sake of society’s interest. In addition, this is considered as the second chance to the convicted felon to rehabilitate and to reform. 45
The next alternative is granting pardon to the convicted. This is but an example. A mother who has lost a son may rather forgive the other son who committed a murder. The present mandatory death penalty means she will lose another son. However, this solution should not be interpreted as encouraging murders. The threat of death penalty still looms in a felon’s head since he does not know whether he is pardoned or not before he committing a murder.
45
Dr. Mohammad Shabbir. n.a. Outlines of Criminal Law and Justice in Islam. Petaling Jaya:
International Law Book Services. p. 33.
53
Furthermore, court still can impose the punishment of imprisonment in the interest of society.
Plural Administration
Some jurist, for example, Imam Abu Hanifah explains that the implementation of Qisas and Diyat should be covering the case of causing death of a non-Muslim resident of the Islamic State (Dzimmi). Moreover, the al-Quran says, “the life for the life”, which includes the murder of a nonMuslim by a Muslim. Professor Dr Anwarullah holds that the difference of the jurists on this point owes itself to carried derivations from the Syariah texts and the more correct derivation is the one which declares Muslim and nonMuslim equal – for the sake of harmony and generality of the Syariah text.46
Professor Dr Syed Ahmad al-Sagoff is also advocating for the implementation to cover also the non-Muslim citizen in the context of multicultural society like Malaysia.47 It is better to stick in a singular system rather than plural types of court jurisdiction that may hamper the due course of justice.
46
Prof. Dr. Anwarullah. 2008. The Criminal Law of Islam. p. 76-77.
Alsagoff, Syed Ahmad S.A. . Al-Diyah as Compensation for Homicide and Wounding in
Malaysia. p. 364.
47
54
CONCLUSION: SUGGESTIONS AND RECOMMENDATIONS
From the very beginning of this study, the most important notion quoted as the purpose of this study to achieve. This is manifested through proper and appropriate distribution of justice. We should not understand justice as should be disseminated equally among all parties. The justice is to treat alike cases alike. It should be proportionate to damage of the crime occurred, to whom should the restoration and substitution being provided.
Thus, for victims, society, government or even the criminal everyone has respective right and interest to justice. Therefore, the author reiterated that in homicide case, it should follow the alternative punishment scheme rather than mandatory. The right to sentence must come from the family of the victims as they are the most aggrieved part of the society. The role of judge will only determine the conviction of the accused. To commute and clemency it is not the role of the Ruler or the Yang di-Petuan Agong but the aggrieving family.
This role should be restored back to the original party as it is the effect of archaic dichotomy between crime and personal injuries which consequently deprive the right of family to get compensation. However, the Ruler may do so if it is the outcome after consultation with the victim’s family member. To make it into reality, amendment has to be made to Federal Constitution,
Criminal Procedure Code and Penal Code. In any case, this can also be manifested by imposing court direction as guidelines to the judges to
55
determine quantum of compensation to be paid to the victim’s family. The proposed court direction is made by collaboration between authoritative institutions like Attorney General Chambers, Offices of Muftis and
Department of Syariah Judiciary (JKSM).
The author understands that to move into inquisitorial mode of trial is nearly absurd. It will affect to amend numerous of law. This if happens will hamper the smooth administration of justice. However, the author believes that the wisdom of the inquisitorial system namely the right of victims of crime to involve in sentencing phase is not an alien development in our law development. Since 2011, the Criminal Procedure Code has received a number of significant amendments to the development of criminal law in our country.
Among the interesting note is that section 426 (1A), which now empowers the judge to direct the criminals who have been convicted of an offense to pay compensation to victims of crimes committed. Prior to this amendment, criminal cases decided without taking into account the welfare of the victims of crime but to appear only as a witness in the trial. To get compensation, the victims have to file civil claims (tort) which would take a long time and high costs due to compensation through litigation is not a single such inquisitorial system. In addition, the inclusion of the new law as a Victim's Impact
Statement under section 173 (m) (ii) and 183A of the Criminal Procedure
Code gives opprtunity to the victims of crime to express suffering from the crime to themselves after the end of the trial to assist the court in determining the appropriate punishment for offenders and fair compensation to the victims.
56
This is a very positive development and is close to the Islamic legal system, particularly in law of diyat (blood money law).
The author also suggests that the implementation of blood money law should be under plural jurisdiction of civil court and not under the exclusive jurisdiction of Syariah court. It is proved that not only Islam embraces with this kind of law but traced back to more ancient civilizations. It was also applied in countries like England once ago. In Malaysia, the judgment in the case of Low Lu Keng v PP can becomes a great example on non-Muslims who understand the very wisdom of blood money law. We must appreciate the multicultural society we have in this country and it is hoped blood money law will distribute the justice indiscriminately if it is imposed to every citizen regardless of their religion.
In implementing blood money law, there is already academic movement being established. It consisted of the lecturers in local universities such as Prof. Ahmad Mohammad Ibrahim, Dr. Syed Ahmad S.A. al-Sagoff,
Dr. Abdul Rahman Awang and Prof. Dr. Muhammad Akram of Islamic
International University of Malaysia and their disciples. Conference and intellectual discourse need to be organized to discuss the practical aspect of the law. This will involve authoritative body like Bar Council, Malaysian Bar and State’s Bar as well as the Syariah Judiciary bodies. Besides, this movement cannot stop in academic level. It must be level up to the higher position. The academician should take an upper step to table the in the
Parliament. It means the academician especially the Muslim need to coordinate with the Member of Parliament to bring this law into existence.
57
This is not an alien approach since the former Lord President, Tun Salleh
Abbas was involved in drafting of Kelantan Syariah Criminal Code Enactment
1993 which was discontinued due to overlapping jurisdiction as most of the offences under the enactment falls under the matter under Federal List.
Therefore, the purpose of this study is to suggest the implementation will not only govern a state but the whole federation as a singular system to avoid unwarranted problem to repeat.
The officers of the court are also responsible for this development. For public prosecutors, they must be alerted to invoke section 426 of Criminal
Procedure Code. to murder case with the view to compensate the victim’s heir.
The same goes to section 173 (m) (ii) and 183A of the Criminal Procedure
Code which provides Victim’s Impact Statement as the mechanism for the victims including the family members and the witness to express their misery out of the crime committed. As for the defence counsels for the time being may invoke the plea bargaining during the pre-trial conference to opt for lesser charge other than death penalty to allow the victims of the crime get compensation in lieu of the criminal life given the second chance to change.
This is but an example. Lastly, the judges themselves must play a progressive role to allow the victims of the crime get their compensation and develop binding precedence as the land mark case.
Next, there is an issue if the family chose blood money to be paid, but the murderer could not afford the payment. Would he or she be reversed back to his original position of death penalty? The answer is yes since the compensation is not satisfied, he need to be put back on death row. That is the
58
order of the alternative punishments proposed. However, some jurist has a better solution. In respect of sanctity of human life and debate on abolishment of capital punishment as we have today, the government could implement a compulsory insurance scheme covering all cases of death resulting from homicide. Thus, a public fund shall be used to help the family of victim to get their justice and mollify their feeling respectively. This is originated from the practice of Áqilah which is accepted by Islam. The central idea of the Aqilah concept is that the members of the accused’s tribe used to be mutually agreed to a financial contribution for the purpose of protecting the accused from financial liability arising out of causing a culpable homicide. This form of contribution has the resemblance with the contribution paid in today’s Takaful practice. And this is not an alien approach as recently the government was drafting new law namely No-Fault Liability (NFL) which will use the public fund to help to compensate damages out of motor vehicle accident. This scheme has some similar characteristic with the proposed Takaful scheme to use public fund lightening heavy burden of the party who caused the accident.
It is also to be noted that NFL is also criticized as to the implementation may result a person would become irresponsible on the road. Therefore, it is suggested to improve such drafting, a comparison need to be made with the proposed law of blood money to fill up the discrepancy.
As the conclusion, the author believes these recommendations are relevant to the current legal scenario. The emergence of death penalty abolishment movement would be pleased if we enact a law which gives better alternative than death penalty. It is also in line with need to have alternative
59
ways of punishment. It also will help the overload in the prison. Thus, it will save the federal money and the abundance will be spent on other needs of society. On behalf of the convicted as when the clemency has been granted, he will have it as the second chance to live and undergo rehabilitation in institution provided by the government in short time served in prison or other institution. For the family of the victim, the amount payable to them will help them to mollify their loss and avoid unnecessary bloodshed and to remove vengeance. For society at large, the function of punishment to give retribution and deterrence is still working as the threat of the death penalty is still looming in head of a potential criminal because he does not know does he can get the clemency or not. Besides that, the heavy burden to pay blood money will also make him reconsider his action so in the future he would not spending his entire life paying the substantial amount of blood money. As for the government, they will act as the middle person after to determine the appropriate sentence for the convicted felon as the family has the right to continue with death penalty or to remit and get the blood money or to forgive the offender. This will lessen the burden of the judiciary and avoid the long term disposal of a case.
Therefore, the author shall conclude his writing by a quote of Prof.
Ahmad Mohamed Ibrahim which said:
“…The obedience to the Islamic Criminal Law does not only depend on the existence of temporal laws to enforce them. The provision relating to the law are contained in the Holy Quran and the Sunnah and these have not and cannot be repealed by anyone. The Muslim
60
needs to be told about them and to understand then and obey them so that they can achieve success in this world and the next…
….As the Islamic Criminal Law is laid down by Allah, Allah will surely help us if we seek to enforce the law. With Allah’s help, both the offences and the punishment for them will be avoided…”48
48
Prof. Ahmad Mohamed Ibrahim. 2000. The Administration of Islamic Law In Malaysia.
Kuala Lumpur: Institute of Islamic Understanding Malaysia (IKIM). p. 626.
61
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64
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