There has been a mixed public reaction to the proposed removal of the mandatory death penalty that was announced by the minister in the Prime Minister's Department in charge of law.
While some view it as progressive in empowering courts with discretion in sentencing, there are others who disagree and have called for the abolition of the death penalty.
Nevertheless, retaining the death penalty is more in line with Islamic legal principles that exclude the element of mandatory sentences in homicide and non-homicide offences. Removing the mandatory element might enhance the effectiveness of the pursuit of justice and safeguard the best interests of victims, their families, defendants and the nation, as a whole.
Judges must be equipped with tools of mercy and leniency as well as punitive powers. They need to have the flexibility to adjudicate cases according to the circumstances and situational factors at play.
Indeed, we would argue that our courts should be provided with more options when deliberating the fairest, most appropriate judgments in cases involving death. According to Islamic criminal law, offences against life and body are crimes that the victim, or his or her heirs, must have some say to determine the nature of punishment.
Death sentence (qisas) is the penalty for intentional murder. The heirs of the victim can demand for the death sentence or pardon the convicted murderer. If pardoned, monetary compensation, or diyat, will be imposed, replacing the death sentence.
Diyat, literally bloodmoney, is a method of compensation in lieu of qisas, and can take place only if the conditions to impose qisas are not fulfilled or if a pardon is agreed by the parties. If not, the death sentence remains.
Diyat is the main punishment for semi-intentional murder (shibh amd) and for causing death by mistake (khata'). Diyat is also provided for in the case of physical injuries, for example due to a traffic accident.
The main element for diyat to take place is pardon, officially given by the victim's heirs. The main question is, can we create a pardon system that involves the heirs of the victim to allow for diyat?
When the heirs of victims are involved in sentencing a convicted murderer, perhaps the process of mediation will take place between the heir, the convicted murderer and the judge at the final stage of proceedings upon a finding of guilt.
There are three options for the heir to decide the fate of the convicted murderer:
REFUSE pardon and demand the imposition of the death penalty according to the law;
PARDON the perpetrator and seek diyat;
PARDON the perpetrator and reconcile and leave it to the court to pronounce a suitable punishment.
The decision would depend on the victim's heirs. Therefore, a pardon system must be in place.
The next question is, how much is the value of diyat?
While arithmetic precision is unattainable, reference can be made in principle to prophetic sources.
According to a letter written to Muaz ibn Jabal, Prophet Muhammad instructed diyat to be paid either with 100 camels, 1,000 gold dinar or 10,000 silver dirham.
The global standard of one dinar is the value of 4.25 grams of 916 gold. One gram of 916 gold today is RM300, one dinar of 4.25 gram will be RM1,275.
Therefore, one full diyat of 1,000 gold dinar may amount to RM1,275,000. However, a new ijtihad (reasoning) is needed to determine the value.
It is the function of the criminal court to punish the offender and the civil court to determine the compensation.
Diyat serves as an alternative if the requirements for qisas is not fulfilled.
While Islam allows for compassion for the offender and encourages pardon, with pardon and compassion comes the duty to recompense the victim's family.
While we applaud the retention of the death penalty, the fact remains that there are 1,342 death row prisoners who have spent many years waiting for the imposition of the death penalty.
Siti Zubaidah Ismail is an associate professor at the Shariah and Law Department, Academy of Islamic Studies, Universiti Malaya. Azril Mohd Amin is chief executive of the Centre for Human Rights Research and Advocacy
The views expressed in this article are the author's own and do not necessarily reflect those of the New Straits Times
