Syariah law allows discretionary cases

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DUE to the high burden of proof in hudud, Islamic law allows ta’zir (discretionary) cases when there are doubts in a particular case, a senior lecturer at Universiti Islamic Sultan Sharif Ali said.

Ta’zir ensures that the criminal will be punished accordingly, said Siti Zaliha Hj Abu Salim.

In a talk at the Knowledge Convention Symposium in Temburong, she said Islamic law can be divided into three types - hudud (fixed penalty), ta’zir (discretionary) and qisas and diyat (retaliation and blood money).

Hudud means offences that carry specific punishments as stipulated by Allah SWT. Criminal offences which do not carry specific punishments are called ta’zir such as vandalising public property.

Offences with specific punishments but inflicted upon human life, such as killing and injuring others are called qisas.

Hudud is considered the rights of Allah because the offence cannot be forgiven by any individual or community, she said.

Siti Zaliha gave examples of crimes under hudud- adultery, qadhf (false accusation of adultery) , alcohol drinking, theft, robbery and apostasy.

Hudud crimes have fixed punishments because they are set by Allah SWT and are found in the Quran, she said.

Siti Zaliha gave an example of the burden of proof required to show that a man or woman are said to have committed adultery.

“_Zina _is if they wilfully participate in sexual intercourse without being validly married to each other, or if their intercourse is syubhah. Syubhah is sexual intercourse performed on the assumption that the marriage is valid, but in fact is invalid, or if sexual intercourse had taken place by mistake.

“If no confession from either individual proving that zina had taken place is given, Syariah law requires four witnesses, who have to be fair and good Muslims, to put forward their individual accounts of the incident devoid of discrepancies,” she added.

Under qisas, the victim has a right to seek retribution and retaliation. The exact punishment for each qisas crime is set forth in the Quran.

The senior lecturer said, “if someone is killed, the family member (next of kin) has a right to seek qisas punishment from the murderer. The punishment can come in several forms and may also include diyat (compensation).”

She added, “the family also may seek public execution of the offender or the family may seek to pardon the offender”.

Qisas crimes include murder (premeditated and non-premeditated), premeditated offences against human life and murder by error.

Siti Zaliha said ta’zir offences are not found in the Quran, so the judges were free to punish the offender in (any fashion), however the punishment must fit the crime. Ta’zir crimes cover bribery, treason and usury.

The Brunei Times