JURIST Guest Columnist Mohamed 'Arafa, an Assistant Professor of Law at Alexandria University Faculty of Law and Visiting Adjunct Professor of Law at Cornell, discusses Sharie‘a Law's role in Islamic transitional justice...
Rule of Law and Transitional Justice: A New Islamic Discipline
“The recompense for an injury is an injury equal thereto (in degree): but if a person forgives and makes reconciliation, his reward is due from Allah [God] . . . But indeed, if any show patience and forgive, that would truly be an exercise of courageous will and resolution in the conduct of affairs.” (The Qur’an 42:40-43). Transitional Justice (TJ) is a growing field in Islamic law, being a comprehensive legal system, TJ has addressed in its primary sources, The Qur’an and The Sunnah (Prophetic traditions).
Politics of Transitional Justice in the Sharie‘a: Mechanisms of TJ
The mechanisms of Islamic TJ could be classified into three classes: criminal persecution, reconciliation and hybrid system. In the criminal persecution, all crimes are classified into one of three sorts; namely, hudud (God’s [fixed] boundaries), qisas (retribution) and ta‘azir (discretionary punishment). On the other hand, sulh (reconciliation) comprises elements of truth-seeking/fact-telling, compensation (monetary or real), tuwbah (repentance and forgiveness). The hybridity model combines some elements of both criminal prosecution and settlement and is the ideal option to evade a culture of impunity, although it depends on the changing situations and societal context.
[a] The Islamic Criminal Accountability (Punishment’s Personality)
Islamic criminal law is based on individual accountability for crimes, and collective punishment is not permitted as a general principle. Islamic jurisprudence among its several schools sets precise circumstances for criminal responsibility with subtle differences. These schools consider crimes “individual, non-transferable and based on [the] conscious intentional conduct of a person possessing his mental faculties who was not acting under extenuating circumstance.” In cases where a criminal activity has been committed, persons and communities are urged to come forth and tell the truth of their responsibility for the crime. Such al-i‘tiraf (confession of culpability) by the offender is the first positive step in any reconciliation process. The Qur’anic texts articulate this principle expressively underscoring to stand for justice regardless of race, religion, relationships, and class and the principle of justice is the cornerstone of the divine TJ, as truth-telling or seeking is fundamental in Islamic legal system.
When the criminal responsibility is established either through voluntary truth-seeking or via criminal investigation, including cross-examination and interrogation, the process of TJ follows the line of retribution or compensation, reconciliation, forgiveness or some other payment(s) based on mutual agreement. To attain the ultimate purpose of justice and community’s unity, offenders must seek regret, repentance, and forgiveness from the victims and this repentance and forgiveness may be accompanied by retribution and compensation.
Under Islamic TJ policy, it is a grave sin for a Muslim to take the life of another person Muslim or non-Muslim, thus, it is not permitted under Sharie‘a to carry out the death penalty either against a Muslim or a non-Muslim, except if the strict evidentiary rules (beyond reasonable doubt) had been fulfilled.
[b] Elements of the Islamic Criminal Punishment
An update of the criminal justice system in Islamic law is one of the major challenges that need to be taken up by Muslim scholars, leaders, and governments (who is in power). Punishment and transitional justice are justified in Islamic law by deterrence – either public and specific – retribution, and rehabilitation and to protect society by incapacitating the offender.
The Islamic Transitional Justice Model: Penalties of Qisas and Ta‘azir (Retributive Justice)
Qisas (or just retaliation) punishments deal with all forms of murdering and injuries that were committed intentionally. In contrast to the Western criminal laws, Qisas criminal deeds are dealt as civil cases, and four stakeholders should be involved, includes the state (authority), the community (tribe, clan, family), the victims, and perpetrators. On the other hand, the state granted the entire right to use additional sentences such as imprisonment, while the victim or his inheritors (family) in case of his death has the final word on whether to choose the option of retribution or compensation. As another choice, the victim [or] legal guardians may completely forgive and pardon the wrongdoer. According to the Islamic norms, retribution is applicable and allowed in case of intentional murder (homicide, killing) or injury, but accidental killing or non-intentional wounding is excluded, and that, diyyah (blood money or compensations) will be implemented. One should bear in mind that the head of state, judge, and the public prosecutor have no powers to grant amnesty over a private right in qisas per se or its diyyah, even if the victim or his relatives grant a pardon, it doesn’t – in any way – derogate from the government’s power of amnesty or prosecution regarding the public right aspect of qisas, which has obvious consequences on public peace order, and the punishment so imposed partakes in ta‘azir.
Only victims (their representatives) hold the right to prosecute the criminal; so public authorities have no supremacy to interrupt, unlike the Western legal model. For legal reparation, the victim’s family may entail payment within the time period when the exercise of reprisal is still adequate though any reward must meet the prerequisite of the perpetrator’s consent.
On the other hand, the ta‘azir punishment includes all laws that God left for human beings to make their judgment in changing time, space and circumstances, that subject to the discretionary power of the judge and it covers an extensive range of penalties as verbal reprimands, public exposure, corporal punishment, imprisonment, exiling or even execution for serious cases. Thus, most punishments are discretionary in nature and determined according to the society’s local culture, as crimes may infringe God’s rights and may violate an individual’s rights. Thus, all performances (not included in hudud, Qisas or diyya) invading private interests of people or public interests of the community fall under the Ta‘azir category, which imposes an obligation on public authorities to codify rules punishing such acts to match the Siyasah (Sharie‘a-oriented policy). For siyasah vests the authorities to act in accordance with the Sharie‘a spirit and maqasid (objectives) at the expense even of a certain departure from scholastic interpretations and ijtihad.
In the context of TJ and to guarantee a community’s protection and safeguard its welfare, public welfare philosophies permit harsh sanctions. Given the deterrent purpose of punishment, it is subject to specific restrictions, as (a) the culprit must have committed a crime which caused genuine damage to the public order and the harm done must represent an imminent risk or threat to the public interest or order; (b) the core of the punishment must justify the penalty per se, and (c) the reasoning of the sentence must permit for flexibility in each situation to create an adequate and proper protection of the public common good.
Islamic Restorative (Healing) Justice: Sulh and Twabah (Reconciliation and Forgiveness)
Restorative justice is about reinstating both the victim and perpetrator of the crimes back into agreement with the community. The spirit of Islamic law accords restorative justice, as it assigns reconciliation values, repentance, and forgiveness to the criminal sentences, in which the crucial objective of the Sharie‘a application is to attain justice among the ummah (community). In this regard, it should be noted that the first step in the sulh (settlement) process is the acknowledgment of accountability and confession by the aggressor, even if conveyed by an excuse for the invasion.
‘afwa (amnesty and pardon) would be irrelevant without the reality of an adverse consequence or punishment. Thus, for pardon without the capability to strike back is equal to vulnerability. Yet reconciling pardon and penalty in the sphere of criminal justice, particularly in a post-conflict setting, poses inquiries often of conflicting interests. In fiqh, ‘afwa means a waiver of a duly necessary sentence for wrongdoing − as ‘afwa does not always – lead to omission of punishment. Pardon may be granted by an individual or a group of individuals, and by extension also by a corporate body or institution. Also, it may employ amnesty and pardon when there is a substantial contribution of government authorities and forgiveness when the initiative belongs to an individual or a nonstate party, although pardon also stands good with reference to both.
Reconciliation represents the keystone of restorative Islamic TJ. It is used as a curative element of TJ that varies from the criminal proceedings and trials. Settlement under Islamic legal thinking involves three approaches: religious, human rights and communal, and the divine attitude means to reconcile and make peace with the opponent by reaching – in most cases – an agreement between the two disputant parties, as a well-known conflict-resolution mechanism in the MENA region. The Qur’an endorses reconciliation and promises great rewards of God for those who accept compromises and for those who are engaged in achieving them and mediating among individuals. Moreover, the Prophet Mohammad warns against relying only on adjudication, which occasionally includes errors because of the articulacy of one of the litigants.
In juristic terms, sulh is a contractual agreement, which must fulfill three conditions: (1) that the agreed sum is obviously quantified such that excludes ambiguity and ignorance; (2) that it precludes non-halal substances as alcohol; and (3) that it is not about something that cannot be waived or alienated, such as someone else’s share in inheritance.
Nevertheless, in the case of mutual violence or civil conflict, Islamic law offers inclusive mechanisms and clear attitudes. It highlights “peace with justice” as the vital goal, as one of the instruments of reconciliation is al-tahkim (arbitration), which occurs when a third person designated by the parties is involved to resolve their disagreements either through conciliation or adjudication. Accordingly, the conflicting parties use an arbitrator in order to work towards a compromise in case they fail to settle a deal by themselves. Arbitration differs from reconciliation, as the latter represents an amicable agreement that may be reached between the litigants with or without a third party, while in the former, the appointment of a third party is essential. Also, the reconciliation agreement is not binding unless it has taken place before the court, while arbitration is legally binding without court intervention.
Repentance and forgiveness are directly linked to each other. Feelings of regret and guilt are normal reflections of sinning if the person who has sinned has a spiritual-moral conscious, as after committing a sin, the individual who fears God would feel a sense of despondency. In the same vein, the Qur’an speaks of proportionality and equivalence in punishment but espouses it with a recommendation for forgiveness.
Tawbah (repentance) and amnesty are rationally connected, as amnesty is usually due when the criminal shows remorse and repents. Reconciliation, amnesty, and compassion in these passages fall under the Qur’anic principle of ihsan (benevolence), which are extremely considered and preferred, whenever suitable, to exacting and punitive attitudes, and even ‘adl (justice).
Based on the general rule, in both the Islamic and modern criminal law, the criminal legislation should be interpreted in favor of the accused and on the side of leniency, and Muslim scholars are almost unanimous that a valid repentance must be indicative of remorse over what has happened; expressive of determination not to repeat the conduct in question; and that there is no actual recurrence. Regarding the taqadum (statute of limitations) in the reconciliation process, it could be practiced by the individual or government and expires, if at all, after a lapse of the time period in which no action is taken by any of the parties concerned. The major Islamic schools argue, however, on ta‘azir offences, which are subject to the discretionary powers of the public authorities who may decide not to prosecute them – based on the public interest – as they have powers to grant amnesty regarding either the punishment, crime, or both, at any time.
Modern scholars concluded that the head of state is within his rights to determine time limits for acceptance or otherwise of the witnesses’ testimony – if this be the sole means of proof – for the offence. It should be noted that the opening of Makkah (birthplace of Mohammad) is placed in the historical roots of the application of Islamic TJ in Islam. Subsequently, Prophet Mohammad applied the Islamic tools of TJ as he, (a) criminally persecuted five persons as of their heinous crimes were unforgiveable; (b) pardoned three individuals after declaring their criminal persecution as of community interference to request their pardon; (c) announced public amnesty to all the folks of Makkah, and (d) demanded for a complete reform of the institutions (military and security forces), as new institutions should be created on the achievements of Islamic ummah’s (community) welfare.
Therefore, any implementation of the Islamic Sharie‘a in the Muslim World – especially TJ mechanisms and processes – should only be made with a cognizance of the multiple schools of Islamic jurisprudence based on the principle of ihktlaf (legal pluralism) according to the Shaf‘i school of thought, as both religious and the political authority are fit to rule on difficult legal cases.
The Sharie‘a is often characterized as a ‘diversity within unity.’ Diversity is due to a degree of flexibility and openness in the textual language of the Qur’an, to moderate interpretation and ijtihad. Yet if it were to recall its vitality and significance, the Sharie‘a entails to be read side by side with the altering facets of social reality and the living conditions of the general public. It is vital to know the juristic details of fiqh and how Muslim scholars have tried to contextualize the source strategies of Islamic norms with their own conditions and realities. Hudud and qisas laws still establish the backbone of Islamic criminal law and can barely be dismissed altogether in the name of modernity and change, or of amnesty and reconciliation. Yet, the realities of criminal justice system and that of the nation that now prevail are symbolic of discontinuity, in some respects, with the fiqh details of hudud and qisas.
The prevalence of taqlid for several centuries and then of colonial rule interrupted the continuity of Sharie‘a, scriptural interpretation and ijtihad. But since the realization of public welfare, peace and normal order constitute the basic maqasid of Islamic law, all bona fide efforts that do not compromise the integrity of truth and justice and seek to put an end to conflict command Sharie‘a validity. It is suitable to the overwhelming mutual population and offers the best option if collective with traditional customs pragmatically and the belief must be in divine justice before earthly justice.
Mohamed ‘Arafa, SJD is an Assistant Professor of Law at Alexandria University Faculty of Law in Egypt and a Visiting Adjunct Professor of Law at Cornell University School of Law. He is also a frequent guest contributor to JURIST.
Suggested citation: Mohamed ‘Arafa, Rethinking Justice in Transitional Justice in the Muslim World: Any Role of Sharie‘a Law, JURIST – Academic Commentary, November 3, 2019, https://www.jurist.org/commentary/2019/11/mohamed-arafa-transitional-justice/
This article was prepared for publication by Tim Zubizarreta, a JURIST Staff Editor. Please direct any questions or comments to him at firstname.lastname@example.org
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