FROM AN ISLAMIC PERSPECTIVE
In the last issue, we have discussed the punishment of qisas, evidences from al-Quran and hadis regarding the implementation of qisas and several examples of offences punishable by qisas. Even though the qisas punishment is determined by Allah Subahanahu wataala in al-Quran, it emphasises more on the right of human beings. Therefore, man can replace the qisas punishment with diat (blood money), that is to pay some amount of compensation determined by Islam as an alternative.
In this last issue, we will be focussing our discussion on diat and tazir i.e. another two kinds of punishment in Islamic law.
Diat according to the terminology of Islamic law means "compensation determined by shara (Islamic law) as a replacement of qisas which has not been implemented.
In the case of murder, there are normally three possible punishements to be imposed; the death sentence in qisas, payment of diat (blood money) in compensation; or unconditional pardon.
Categories of diat and its quantity
Diat is divided into two categories; heavy diat and light diat.
Heavy Diat: It is imposed on murders committed intentionally or quasi-intentationally. An intentionally committed murder is one that has the following three factors:
1. Intention to kill
2. Aimed at a specific person
3. Utilising an object that can generally cause death.
When a murder consists of there three elements and the myrderer has been proven to be guilty, then the punishment for such a murder is the mandatory qisas. If the family of the slained is unwilling to practice the qisas punishment, yet has asked for compensation (diat) in lieu of qisas, and this request is agreed to by the other party, then in this case, the diat is based on what is determined by shara. As mentioned by Rasulullah Sallallahu alaihi wasallam:
Meaning: "Verily, the diat for murdering a mukmin is one hundred camels".
(Hadis narrated by Ibnu Hibban)
The following hadith illustrates in greater detail the kinds of camel required in excercising diat:
Meaning: "Whosoever kills intentionally, so the murder is surrendered to the family of the murdered. They may either retaliate by murdering him (qisas) or accept diat. The diat required are 30 female camels aged between 3 to 4 years old, 30 female camels aged between 4 to 5 years old and 40 pregnant female 0camels."
(Hadis narrated by Tirmidzi)
The murderer himself will bear the full responsibility of diat for the offence and it should be paid without delay.
Quasi-intensional murder is a murder that does not meet the three characteristics mentioned above. For example, someone hurts another by using a stick or a rope and unexpectedly the victim dies. In this case, the object used does not normally cause death, but if the victim dies due to the said object, then the murder committed is called quas-intentionally. The diat punishment imposed on such cases is similar to the diat of intentionally committed murders but it is carried out by the family of the murderer and payment may be made by instalments for a period of three years. Each year, 1/3 of the total diat should be paid.
Light diat: It is imposed on unintentional committed murders the qisas punishment could not be executed on such murders, but diat will take place. An example of an unintentional murder is the case of a person who cuts a tree without any intention to murder anyone, but accidentally the tree falls on someone and kills him. The diat punishment for such a killing is a s what Allah Subahanahu wa Taala has said in al-Quran:
Translation : "He who hath killed a believer by mistake must set free a believing slave and pay the blood-money to the family of the slain"
The amount for light diat is similar to the amount of heavy diat that is 100 camels. However, its implementation is different. Light diat is borne by members of the family and shared among them; can be paid installments for up to three years and the total of 100 camels is divided into five categories:
1. 20 female camels aged one year and above.
2. 20 male camels aged two years and above.
3. 20 female cames aged two years above.
4. 20 female camels aged three years and above.
5. 20 female camels aged four years and above.
May Diat be Paid in Cash or Kind?
As a whole, ths issue on diat reveals the Arab influence as the animal used as payment is the camel which is abundant in the Arab countries. If diat is such, what about the Muslims living outside Arab countries such as Malaysia, Indonesia, Brunei and others that do not have camels?
Actually, the camel is only the example. According to Sayyidina Umar bin Al-Khattab Radhiallahu anhu diat may be paid either with sheep, cows, money and etc. as a replacement for camel.
In diat payment, what is more significant is to fulfill the religious obligation by paying an amount equivalent to the average value of 100 camels and not its value during inflation, etc. In Muslim societies today, the amount payable as diat can be determined by the court based on the present currency rate which is equivalent to the value of the 100 camels which have been categorised in the previous hadith.
Offences Punishable by Diat
Punishment for intentionally and quasi-intentionally committed murders which have been proven in the court of law may, with the agreement of booth parties, the murderer and the victim murdered, be placed by diat.
Besides that, diat may also be carried out on other kinds of offences usually punishable by qisas such as causing injury, damages, physical impairment, blindness and such, if the qisas punishment has not taken place.
This is cleary shown by Rasulullah Shallallahu alaihi wassalam in his hadith that says:
Meaning: In cutting nose, when it is completely served, a full diat payment becomes obligatory."
Acting an alternative to qisas, diat is a a kind of social assurance exercised by Islam in providing protection to the public in matters concerning compensation.
Lingualistically, tazir means to prevent or to avoid. According to Islamic terminology, ta`zir means: "Descretionary punishment which must be implemented in order to perform the rights of Allah or of a man for every offence not punishable by hudud or kaffârah."
Imam al-Suyuthi has clarified which means :
"Whosoever commits a sin which is not under the category of hudud and kaffârah offences, should be punished by tazir."
From the explanation of Imam as-Suyuthi, it is clear that the scope of tazir punishment is so wide of many branches. It is descretionary punishment that has yet to be determined in terms of amount and form. It is up to the wisdom of the hakim or kadi (judge) to determine the punishment based on his judgement. However, the judge should not be simply impose punishment wirhout first making a rational judgement of the offence committed.
Ways of Implementing Tazir Punishment
Determining ta`sir Punishment is within the jurisdiction of the court. Scholars of Islamic jurisprudence have fixed guidelines that judges need to be careful with in executing the tazir punishment in order to avoid abuse of power. Among others, the guidelines are as follow:
1. The tazir punishment imposed on a offender must meet the main objective of having tazir in the first place, that is to safeguard public interest, and not for personal or group well-being.
2. The tazir punishment should be judged by looking at its prositive effects, ehether in helping the offender or in presenting the society from committing such a crime in order to establish harmony among man.
3. There should be a balance between the crime committed and the punishment meted out. The balace should be honourde in order to maintain harmony and mans trust in the wisdom of a well-executed tazir punishment.
4. Justice in tazir punishment is most important. If the crime had been committed by a group of people, then the punishment imposed on each of them should be the same. There should not be a case where the offender is given a lighter punishment simply because he is an influential person.
5. The tazir punishment should not exceed hudud punishment.
With the guidelines fixed by the scholars of Islamic jurisprudence, it is the responsible of the judges given the authority to implement tazir are expected to arrive at wise decisions in their effort to implement the implementthe punishment justly.
Through this discussion, it is obvious that in Islam, there is not a single offence that can be liberated from its punishment. Every proven offence has its punishment. This is beyond doubt.