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Qisas

Qiṣāṣ (Arabic: قصاص‎) is an Islamic term meaning "retaliation in kind",[1][2] "eye for an eye", or retributive justice. In traditional Islamic law (sharia), the doctrine of qisas provides for a punishment analogous to the crime. Qisas is available to the victim or victim's heirs against a convicted perpetrator of murder or intentional bodily injury.[3] In the case of murder, qisas gives the right to take the life of the killer, if the latter is convicted and the court approves.[4] Those who are entitled to qisas have the option of receiving monetary compensation (diyya) or granting pardon to the perpetrator instead.

Qisas is one of several forms of punishment in traditional Islamic criminal jurisprudence, the others being Hudud and Ta'zir.[5] The legal systems of Iran, Pakistan, Saudi Arabia and some Nigerian states currently provide for qisas.

Islamic scriptures

Quran

The Qisas or equivalence verse in Quran is,[1]

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 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.

— Quran 2:178

The Qur'an allows the aggrieved party to receive monetary compensation (blood money, diyya, دية) instead of qisas,[6] or forfeit the right of qiṣāṣ as an act of charity or in atonement for the victim family's past sins.

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." But if any one remits the retaliation by way of charity, it is an act of atonement for himself. And if any fail to judge by (the light of) what Allah hath revealed, they are (No better than) wrong-doers.

— Quran 5:45

Hadith

The Hadiths have extensive discussion of qisas. For example, Sahih Bukhari states,

Allah's Apostle said, "The blood of a Muslim who confesses that none has the right to be worshipped but Allah and that I am His Apostle, cannot be shed except in three cases: In Qisas for murder, a married person who commits illegal sexual intercourse and the one who reverts from Islam (apostate) and leaves the Muslims."

Narrated Anas: The daughter of An-Nadr slapped a girl and broke her incisor tooth. They (the relatives of that girl), came to the Prophet and he gave the order of Qisas (equality in punishment).

Many premodern Islamic scholars ruled that only diya (blood money) and not qisas was available when the victim was a non-Muslim dhimmi and to non-Muslim slaves owned by a Muslim, based on hadith.[7]

Narrated Abu Juhaifa: I asked 'Ali "Do you have anything Divine literature besides what is in the Qur'an?" Or, as Uyaina once said, "Apart from what the people have?" 'Ali said, "By Him Who made the grain split (germinate) and created the soul, we have nothing except what is in the Quran and the ability (gift) of understanding Allah's Book which He may endow a man, with and what is written in this sheet of paper." I asked, "What is on this paper?" He replied, "The legal regulations of Diya (Blood-money) and the (ransom for) releasing of the captives, and the judgment that no Muslim should be killed in Qisas (equality in punishment) for killing a Kafir (disbeliever)."

Traditional jurisprudence

Traditional Islamic jurisprudence (fiqh) treats homicide as a civil dispute,[8] rather than an act requiring corrective punishment by the state to maintain order.[9] In all cases of murder, unintentional homicide, bodily injury and property damage, under traditional Islamic law, the prosecutor is not the state, but only the victim or the victim's heir (or owner, in the case when the victim is a slave). Qisas can only be demanded by the victim or victim's heirs.[10]

According to classical jurists of the Shafi'i, Maliki and Hanbali schools, qisas is available only when the victim is Muslim, while the Hanafi school took a different stance on this point.[11][12][13]

In the early history of Islam, there were considerable disagreements in Muslim jurist opinions on applicability of Qisas and Diyya when a Muslim murdered a non-Muslim (Dhimmi, Musta'min or slave).[14][15] Most scholars of Hanafi school of fiqh ruled that, if a Muslim killed a dhimmi or a slave, Qisas (retaliation) was applicable against the Muslim, but this could be averted by paying a Diyya.[14][16] In one case, the Hanafi jurist Abu Yusuf initially ordered Qisas when a Muslim killed a dhimmi, but under Caliph Harun al-Rashid's pressure replaced the order with Diyya if the victim's family members were unable to prove the victim was paying jizya willingly as a dhimmi.[17] According to Fatawa-e-Alamgiri, a 17th-century compilation of Hanafi fiqh in South Asia, a master who kills his slave should not face capital punishment under the retaliation doctrine.[18]

Non-Hanafi jurists have historically ruled that Qisas does not apply against a Muslim, if he murders any non-Muslim (including dhimmi) or a slave for any reason.[12][13] Both Shafi'i and Maliki fiqh doctrines maintained, notes Friedmann, that the Qisas only applies when there is "the element of equality between the perpetrator and the victim"; Qisas is not available to an infidel victim when the crime's perpetrator is a Muslim because "equality does not exist between a Muslim and an infidel, and Muslims are exalted above the infidels".[19]

According to Hanbali legal school, if a Muslim kills or harms a non-Muslim, even if intentionally, Qisas does not apply,[12] and the sharia court may only impose a Diyya (monetary compensation) with or without a prison term on the Muslim at its discretion. The Maliki fiqh also forbids applying Qisas against a Muslim if the victim is a dhimmi, but has ruled that the Muslim may be killed if the murder was treacherous.[11][14] If the killing, bodily or property damage was unintentional, the compensation to a non-Muslim was declared to be half of what would be due for an equivalent damage to a Muslim. The Shafi'i fiqh was similar to Hanbali fiqh, and Qisas did not apply if the victim was a non-Muslim;[20] additionally, Shafi'i jurists held that the compensation for the victim's heirs should be a third of what would be due in case the victim was a Muslim.[11][21] According to Hanafi school, neither Qisas nor Diyya applied against a Muslim or a dhimmi who killed a Musta'min (foreigner visiting) who did not enjoy permanent protection in Dar al-Islam and may take up arms against Muslims after returning to his homeland (dar al-harb).[22]

Neither Qisas nor any other form of compensation applied in case the victim was an apostate (converted from Islam to another religion), a person who has committed the hadd crime of transgression against Islam or Imam (baghy), or a non-Muslim who did not accept himself or herself as a Dhimmi, or if the non-Muslim victim's family could not prove that the victim had paid Jizya regularly.[14][21]

Muslim jurists justified the discriminatory application of Qisas between Muslims and non-Muslims by referring to the following hadith.[23]

Narrated Abdullah ibn Amr ibn al-'As: The Prophet said: A believer will not be killed for an infidel. If anyone kills a man deliberately, he is to be handed over to the relatives of the one who has been killed. If they wish, they may kill, but if they wish, they may accept blood-wit.

Numerous Hanafi, Shafi'i and Maliki jurists stated that a Muslim and a non-Muslim are neither equal nor of same status under sharia, and thus the judicial process and punishment applicable must vary.[23]

Current practice

Qiṣāṣ is currently provided for by legal systems of several countries which apply traditional Islamic jurisprudence (Saudi Arabia) or have enacted qisas laws as part of modern legal reforms.

Iran

Through sections 1 through 80 of Iran's penal code, Qisas have been enacted as one of the methods of punishment.[24][25] Iran penal code outlines two types of Qisas crime - Qisas for life, and Qisas for part of human body.[26] In cases of qisas for life, the victim's family may with the permission of court, take the life of the murderer. In cases of qisas for part of human body, section 55 of Iran's penal code grants the victim or victim's family to, with permission of the court, inflict an equal injury to the perpetrator's body. If the victim lost the right hand and perpetrator does not have a right hand for qisas, then with court's permission, the victim may cut the left hand of the perpetrator.[26]

In one episode, qiṣāṣ was demanded by Ameneh Bahrami, an Iranian woman blinded in an acid attack. She demanded that her attacker Majiv Movahedi be blinded as well.[27] In 2011, Bahrami retracted her demand on the day the sentence was to be carried out, requesting instead that her attacker be pardoned.[28]

A prisoner lodged in the Gohardasht Prison of the city of Karaj, was reported to have been blinded in March 2015 after being convicted for an acid attack on another man in 2009 and sentenced to the punishment under "qisas".[29]

Pakistan

Pakistan introduced Qisas and Diyat in 1990 as Criminal Law (Second Amendment) Ordinance, after the Shariat Appellate Bench of the Supreme Court of Pakistan declared that the lack of Qisas and Diyat were repugnant to the injunctions of Islam as laid down by the Quran and Sunnah.[30] Pakistani parliament enacted the law of Qisas and Diyat as Criminal Law (Amendment) Act, 1997.[31] An offender may still be punished despite pardoning by way of ta'zīr or if not all the persons entitled to Qisas joined in the compromise.[32] The Pakistan Penal Code modernized the Hanafi doctrine of qisas and diya by eliminating distinctions between Muslims and non-Muslims.[33]

Nigeria

Since the 1960s, several northern states of Nigeria have enacted sharia-based criminal laws, including provisions for Qisas. These codes have been applied in the Sharia Courts of Nigeria to Muslims. Many have been sentenced to retaliation under the Qisas principle, as well as to other punishments such as hudud and tazir.[34][35]

Saudi Arabia

Murder and manslaughter are private offenses in Saudi Arabia, which a victim or victim's heirs must prosecute, or accept monetary compensation, or grant pardon.[36] The sharia courts in Saudi Arabia apply Qisas to juvenile cases, with previous limit of 7 year raised to 12 year age limit, for both boys or girls.[37] This age limit is not effectively enforced, and the court can assess a child defendant's physical characteristics to decide if he or she should be tried as an adult. In most cases, a person who satisfies at least one of the following four characteristics is considered as an adult for Qisas cases:[36] (1) above the age of 15, (2) has wet dreams (al-ihtilam), (3) any appearance of pubic hair, or (4) start of menstruation. Qisas principle, when enforced in Saudi Arabia, means equal retaliation and damage on the defendant.[36]

According to reports in Saudi media, in 2013, a court in Saudi Arabia sentenced a defendant to have his spinal cord severed to paralyze him, unless he paid one million Saudi riyals (about US$270,000) in Diyya compensation to the victim. The offender allegedly stabbed his friend in the back, rendering him paralysed from the waist down in or around 2003.[38] Other reported sentences of qisas in KSA have included eye gouging, tooth extraction, and death in cases of murder.[39]

Qisas and honor crimes

According to most variations of Sharia, neither Qisas nor Tazir applies if a Muslim parent or grandparent kills their child[18] or grandchild,[40] or if the murder victim is a spouse with whom one has surviving children.[40] The culprit can be, however, subject to Diyya (financial compensation) which is payable to the surviving heirs of the victims.[40]

The four major schools of Sunni Sharia have been divided on applicability of Qisas when the victim is a child, and the father is the murderer. The Hanafi, Shafi'i and Hanbali Sunni sharias have ruled that Qisas does not apply, as has the Shia Sharia doctrine. The Maliki school, however, has ruled that Qisas may be demanded by the mother if a father kills his son.[1][41] The Hanafi, Hanbali and Shafi'i sharia extend this principle to cases when the victim is a child and the mother or grandparents are the murderers.[20][42]

Scholars suggest that this exemption of parents and relatives from Qisas, and the treatment of homicide-related Qisas as a civil dispute that should be handled privately by victim's family under sharia doctrine, encourages honor crimes, particularly against females, as well as allows the murderer(s) to go unpunished.[43][44][45] This, state Devers and Bacon, is why many honor crimes are not reported to the police, nor handled in the public arena.[46][47] Historically, Sharia did not stipulate any punishment against the accused when the victim is the child or the spouse of the murderer, but in modern times some Sharia-based Muslim countries have introduced laws that grant courts the discretion to impose imprisonment of the murderer.[40] However, the victim's heirs have the right to waive Qisas, seek Diyat, or pardon the killer.[45][48]

Eye for an eye

A legal concept similar to Qisas is the principle of Eye for an eye first recorded in the Code of Hammurabi.

See also

References

  1. ^ a b c Mohamed S. El-Awa (1993), Punishment In Islamic Law, American Trust Publications, ISBN 978-0892591428
  2. ^ Shahid M. Shahidullah, Comparative Criminal Justice Systems: Global and Local Perspectives, ISBN 978-1449604257, pp. 370-372
  3. ^ Tahir Wasti (2009), The Application of Islamic Criminal Law in Pakistan: Sharia in Practice, Brill Academic, ISBN 978-9004172258, pp. 12-13
  4. ^ Encyclopædia Britannica, Qisas (2012)
  5. ^ Asghar Schirazi (1997), The Constitution of Iran : politics and the state in the Islamic Republic, I.B. Tauris London, pp. 222-225
  6. ^ Christie S. Warren, Islamic Criminal Law, Oxford University Press, Qisas
  7. ^ Anver M. Emon (2012), Religious Pluralism and Islamic Law: Dhimmis and Others in the Empire of Law, Oxford University Press, ISBN 978-0199661633, pp. 237-249; Quote "Muslim jurists defended this discriminatory application of qisas liability by reference to a hadith in which the Prophet said: 'A believer is not killed for an unbeliever or one without a covenant during his residency.' Jurists who constructed discriminatory rules of liability relied on the first half of the hadith. Furthermore, they argued that these discriminatory rules reflected the fact that Muslims were of a higher class than their non-Muslim co-residents."; Quote 2 "Furthermore, using the logical inference of a minore ad maius, Al-Mawardi held that just as a Muslim bears no liability for sexually slandering a dhimmi, he cannot be liable for killing one, a much more serious offense.
  8. ^ Tahir Wasti (2009), The Application of Islamic Criminal Law in Pakistan: Sharia in Practice, Brill Academic, ISBN 978-9004172258, pp. 283-288
  9. ^ Malik, Nesrine (5 April 2013). "Paralysis or blood money? Skewed justice in Saudi Arabia". The Guardian. Retrieved 14 February 2015.
  10. ^ Rudolph Peters (2006), Crime and Punishment in Islamic Law, Cambridge University Press, ISBN 978-0521796705, pp. 44-49, 114, 186-187
  11. ^ a b c Majid Khadduri and Herbert J. Liebesny, Law in the Middle East: Origin and Development of Islamic Law, 2nd Edition, Lawbook Exchange, ISBN 978-1584778646, pp. 337-345
  12. ^ a b c Rudolph Peters and Peri Bearman (2014), The Ashgate Research Companion to Islamic Law, ISBN 978-1409438939, pp. 169-170
  13. ^ a b J. Norman D. Anderson (2007), Islamic Law in Africa, Routledge, ISBN 978-0415611862, pp. 372-373
  14. ^ a b c d Yohanan Friedmann (2006), Tolerance and Coercion in Islam: Interfaith Relations in the Muslim Tradition, Cambridge University Press, ISBN 978-0521026994, pp. 42-50
  15. ^ Tahir Wasti (2009), The Application of Islamic Criminal Law in Pakistan: Sharia in Practice, Brill, ISBN 978-9004172258, pp. 89-90
  16. ^ Rudolph Peters and Peri Bearman (2014), The Ashgate Research Companion to Islamic Law, ISBN 978-1409438939, pp. 129-137
  17. ^ Yohanan Friedmann (2006), Tolerance and Coercion in Islam: Interfaith Relations in the Muslim Tradition, Cambridge University Press, ISBN 978-0521026994, pp. 42-43
  18. ^ a b SC Sircar, The Muhammadan Law, p. 276, at Google Books, pp. 276-278
  19. ^ Yohanan Friedmann (2006), Tolerance and Coercion in Islam: Interfaith Relations in the Muslim Tradition, Cambridge University Press, ISBN 978-0521026994, pp. 45-46, Quote: "(...) maintained that the element of equality which is inherent in the concept of qisas "does not exist between a Muslim and an infidel because infidelity lowered his standing and diminished his rank" (wa la musawat bayna al-muslim wa al-kafir fa-inna al-kufr hatta manzilatahu wa wada'a martabatahu). Perceiving Muslims as exalted above the infidels is, again, the conceptual basis for determining the law."
  20. ^ a b Al-Misri (Translated by Nuh Ha Mim Keller), Reliance of the Traveller, ISBN 978-0915957729, Ruling O:1.2, Quote: "The following are not subject to retaliation: (2) a Muslim for killing a non-Muslim; (4) a father or mother (or their fathers or mothers) for killing their offpsring, or offspring's offpsring; (5) nor is retaliation permissible to a descendant such as when his father kills his mother"
  21. ^ a b Richard Terrill (2012), World Criminal Justice Systems: A Comparative Survey, Routledge, ISBN 978-1455725892, pp. 554-562
  22. ^ Yohanan Friedmann (2006), Tolerance and Coercion in Islam: Interfaith Relations in the Muslim Tradition, Cambridge University Press, ISBN 978-0521026994, pp. 42-51
  23. ^ a b Anver M. Emon (2012), Religious Pluralism and Islamic Law: Dhimmis and Others in the Empire of Law, Oxford University Press, ISBN 978-0199661633, pp. 237-250
  24. ^ A Guide to the Legal System of the Islamic Republic of Iran Archived January 7, 2012, at the Wayback Machine, March 2006
  25. ^ Islamic Penal Code of the Islamic Republic of Iran Archived 2014-03-27 at the Wayback Machine, Book 3
  26. ^ a b Shahid M. Shahidullah, Comparative Criminal Justice Systems: Global and Local Perspectives, ISBN 978-1-4496-0425-7, pp. 425-426
  27. ^ "In Iran, a case of an eye for an eye" Phillie Metro March 29, 2009
  28. ^ "Iranian sentenced to be blinded for acid attack is pardoned" (BBC News, 31 July 2011)
  29. ^ Marszal, Andrew (6 March 2016). "Iran condemned for 'unspeakably cruel' blinding of prisoner". Telegraph.
  30. ^ Federation of Pakistan v. Gul Hasan Khan, PLD 1989 SC 633–685, affirming PLD 1980 Pesh 1–20 and PLD 1980 FSC 1–60
  31. ^ see PPC ss. 299–338-H; Tahir Wasti (2009), The Application of Islamic Criminal Law in Pakistan: Sharia in Practice, ISBN 978-90-04-17225-8, Brill, p. 8
  32. ^ Pakistan Penal Code s. 311; Azmat and another v. The State, PLD 2009 Supreme Court of Pakistan 768
  33. ^ Tahir Wasti (2009). The Application of Islamic Criminal Law in Pakistan. Brill. p. 49.
  34. ^ G.J. Weimann (2007), "Judicial Practice in Islamic Criminal Law in Nigeria 2000 to 2004—A Tentative Overview," Islamic Law & Society, 14(2), pp. 240–286
  35. ^ I.K. Oraegbunam (2012), Penal Jurisprudence under Islamic Criminal Justice: Implications for the Right to Human Dignity in Nigerian Constitution, Journal Islamic State Practices in Int'l Law, 8, pp. 31-49
  36. ^ a b c Human Rights Watch (2008), The Last Holdouts, Juvenile Death Penalty in Iran, Saudi Arabia, Sudan, Pakistan and Yemen, ISBN 1564323757, pp. 7-9; Archived summary
  37. ^ Child Rights International Network (March 2013), Inhuman sentencing of children in Saudi Arabia, 17th session of the Human Rights Council Universal Periodic Review; Don Cipriani (2009), Children’s Rights and the Minimum Age of Criminal Responsibility, Farnham: Ashgate Publishing, ISBN 978-0754677307
  38. ^ Nair, Drishya (April 2, 2013). "saudi arabia: man who paralyzed friend to have spinal cord severed". International Business Times. Retrieved 16 February 2015.
  39. ^ Saudi Arabia: News of paralysis sentence "outrageous" Archived February 17, 2015, at the Wayback Machine Amnesty International (2 April 2013)
  40. ^ a b c d Sara Hossain and Lynn Welchman (2005), 'Honour': Crimes, Paradigms and Violence Against Women, ISBN 978-1842776278, pp. 85-86
  41. ^ Tahir Wasti (2009), The Application of Islamic Criminal Law in Pakistan: Sharia in Practice, Brill, ISBN 978-9004172258, p. 90
  42. ^ Tahir Wasti (2009), The Application of Islamic Criminal Law in Pakistan: Sharia in Practice, Brill, ISBN 978-9004172258
  43. ^ Stephanie Palo (2008), A Charade of Change: Qisas and Diyat Ordinance Allows Honor Killings to Go Unpunished in Pakistan, UC Davis Journal Int'l Law & Policy, 15, pp. 93-99
  44. ^ RA Ruane (2000), Murder in the Name of Honor: Violence Against Women in Jordan and Pakistan. Emory Int'l Law Review, 14, pp. 1523-1532
  45. ^ a b Hannah Irfan (2008), Honor Related Violence Against Women in Pakistan, World Justice Forum, Vienna July 2–5, pp. 9-12
  46. ^ Lindsey Devers and Sarah Bacon (2010), Interpreting Honor Crimes: The Institutional Disregard Towards Female Victims of Family Violence in the Middle East, International Journal of Criminology and Sociological Theory, Vol. 3, No. 1, June 2010, pp. 359-371
  47. ^ Sharbanoo Keshavarz (2006), Honor Killing in Iran: a Legal Point of View, Yearbook of Islamic & Middle East Law (2006-2007), Vol 13, pp. 87-103
  48. ^ Shahid M. Shahidullah (2012), Comparative Criminal Justice Systems: Global and Local Perspectives, ISBN 978-1449604257, pp. 511