Did the Saudi Judges Act According to Islamic Law?
The Rizana Nafeek caseJanuary 11, 2013, 7:57 pm
By M.Haris Z Deen
Ph.D., MBA., BSc., LLB (Hons)., FRICS
Homicide and Bodily harm fall within the Koranic doctrine of Qisas. Homicide, according to the Islamic Shari’a falls into five categories as follows:
Qatl amd – Intentional homicide
Shibh amd – quasi-intentional killing
Qatl khata’ – accidental homicide
Majra’ al khata’- Is similar to accidental homicide, but different in nature to Qatl Khata’
Qatl bi sabab – indirect killing.
The above five categories are graded on a scale of intentionality. Cambridge University Prof. Wael Hallaq states that "the degree of intentionality involved is measured by external criteria, as the jurists deemed knowledge of inner motives (ma fil-batin) to be well nigh impossible".
This to me is the same as establishing mens rhea in common law courts when determining guilt in criminal cases. It would therefore appear that there is some similarity between the standards of proof required under common law and that under the Shari’a. In fact the standard of proof under the Shari’a is much more stringent than that required under common law principles.
Before discussing Rizana Rafeek’s case as presented to us and without making any value judgements on the Saudi legal system let us see what the five categories of homicide define.
Qatl amd – Intentional Killing
This type of killing involves not only the intent to kill but also the use of a lethal weapon that is customarily used to kill. Furthermore, it must be committed by the murderer without any coercion. This is an integral element of intentionality. Anyone who kills someone under pressure from another person would not be liable to the death penalty.
According to reports Rizana did not use any lethal weapon. Whether she killed the child intentionally is another matter and there is no evidence of any coercion. By definition the alleged offence does not fall under this category.
Prof. Hallaq explains that "liability for punishment (in this case) is inextinguishable, giving the kin of the victim an eternal right to inflict appropriate retaliation or collect damages.
Shibh amd – Quasi intentional Killing
In this type of killing the element of intention to exercise violence is present but the instrument used is neither regarded as lethal nor customarily construed as a murder weapon. For example a small stick. The followers of Imam Shafi’i and Imam Hanbali hold the view that repeated beating with a stick causing the death of a person would amount to committing the act with full intent, as against causing death by striking once or twice. Similarly if someone playfully pushes another into waters infested with crocodiles without knowing the presence of those reptiles can be accused of committing a "quasi intentional" killing although it was done without any malicious intentions.
As stated in the previous paragraph, newspaper and other reports do not indicate that the accused used any kind of weapon, neither is there any suggestion to assume otherwise. Therefore, it would appear, that Rizana’s case does not come under this heading either.
There is no capital punishment amounting to beheading in under this category. However, compensation under this group of killing amounts to extensive blood money, unless the accused is pardoned by the victim’s family.
Khatl khata’ – Accidental Homicide
This is a pure accidental event such as accidentally shooting someone, while hunting game.
If the reports are correct (and if the child had actually died in the hands of Rizana), then what actually happened is accidental death. We are told that the child had choked while being fed and the maid Razana only "stroked" the child’s throat to relieve it from choking. What resulted was unbelievable. If this was the case then it is accidental death coming under this category. There is no capital punishment of beheading in this instance and the damages are also very little.
Majra al-khata – Similar to Accidental Homicide
This happens when someone accidentally trips on someone or something and falls on another person killing him or her. Or when someone while being asleep rolls over someone or falls from a bed on someone asleep below resulting in the other person’s death. There is no death sentence for this offence and the damages are far less than in the case of other categories.
This will not be applicable to Razana’s case.
Qat bi sabab – Indirect Killing
These are very rare incidences such as when someone is digging a well and that he did not provide any safety barriers causing someone to fall and be killed. This is also not an offence punishable by beheading and as in the case of the previous two offences the damages are also minimal.
This will also not be applicable to Rizana’s case
On analysis it would appear that the girl Razana Nafeek’s case falls under the category of Khatl khata’ – Accidental Homicide. I am basing assumption only on hearsay evidence. If that is the case it would appear that the Saudi Judges have erred in sentencing her to be beheaded. ALLAH KNOWS BEST.
The question has been raised as to why the girl was kept for nearly two years in custody if she was actually guilty. It has been revealed by a Human Rights Group that the girl was kept in custody following an appeal. At the same time that the girl was a minor of 17 years at the time she committed the alleged offence will not hold good because she was an accomplice for falsifying her age by Employment Agents. These defences must fail.
Homicide under the Islamic Shari’a is a private wrong. Prosecution takes place only upon the demand of the victim’s next of kin. Minors and the insane are exempt from punishment. Nonetheless, their next of kin become liable for financial damages. It appears from all the reports that I have read, the fact that the baby died "at the hands" of the maid, thus establishing actus rheus. According to reports the cause of death was attributed to choking and the maid had only tried to relieve the baby by "stroking" the neck. A likely story some might say, but there is certainly a degree of doubt. In my humble view, the benefit of the doubt should certainly have been given to the girl Razana. The fact that the mother of the victim had very strongly initiated the prosecution should not have prevented the Saudi government from appealing for clemency. Also did the Sri Lankan Embassy in Saudi Arabia do enough to challenge the Arabic interpretation of Razana Nafeek’s alleged confession? Apparently, the statements made by Razaa, who did not know Arabic, was translated by a Malayalee translator. There is no evidence that anybody had challenged that translation.
Therefore, it appears that mistakes had been done by both sides. If Saudi Arabia followed the law of that country in beheading Razana Nafeek, it is their law and should not be compared with the Islamic Shari’a
Ref: Hallaq; W.B; Shari’a – Theory Practice Transformations – Cambridge University Press (2009)
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