The Execution of Rizana A serious Miscarriage of Islamic JusticeThe tragic and shocking news of execution of Rizana Nafeek sends shock- waves to all corners of the island. It gives a wrong picture to the people on the nature and the application of the Isl – By Dr. M.A.M.H. Barry (Attorney-at-Law)

The tragic and shocking news of execution of Rizana Nafeek sends shock- waves to all corners of the island. It gives a wrong picture to the people on the nature and the application of the Islamic law as many people are under the impression that the applicable law in Rizana’s case was derived from Undiluted Islamic Jurisprudence. In fact, Rizana’s verdict shows otherwise. Islamic law is knitted together with “Justice”(Adl) which is considered as an attribute of Allah. In Islam there is no dichotomy between Justice and Law. The law is synonymous with justice and it is only Islamic jurisprudence which does not bifurcate law and justice. It implies that any law which is not just, is not a law. Islam stresses ‘Justice with Benevolence (Al-adl wa’l ihsān).
The sharia is not a patent right of any state or person to misuse for the parochial purposes. It cannot and will not cause injustice to any person regardless of him/her being strong or weak. It provides a special protection for the weak and the unprivileged. In criminal law context, it protects the interest of both the accused and the victim.

Presumption of Innocence
The presumption of innocence is the fundamental principle of the Islamic law of criminal evidence. In an early hadith (recorded sayings of the Prophet by his companions), the Prophet stated: “Had men been believed only according to their allegations, some persons would have claimed the blood and properties belonging to others, but the accuser is bound to present positive proof (beyond all shadow of doubts). (Hadith of Imam al Nawawi).
In criminal cases under the Islamic law, the prosecution has the overall burden of proof and it goes beyond the standard set out by the common law’s ‘beyond reasonable doubt.’ Under the Islamic law, not only the prosecution has to prove the charged offence beyond all reasonable doubts but it has to be proven beyond all shadows of doubt. The accused has no evidential burden till the prosecution establishes prima facie evidence.
The facts and the judgment of Rizana’s case raise some serious and striking questions which need flawless and doubtless answers. These questions are:-
(1) Whether the said act attributed to Rizana is intentional or unintentional?
(2) Whether Rizana was given opportunity to rebut the charges against her in a fair and free manner (entitlement to Adjective justice)
(3) Why did not Saudi Arabian Courts take Rizana’s age into a serious account before the death penalty was sentenced?  

Islam law regards killing a man as the murder of the entire human race, and whoever saves a life is considered to have saved the entire mankind.
Under the Islamic law the crime falls under two categories according to the offender’s intention
(1) Intentional Crimes
(2) Unintentional Crimes or Quasi intentional.
Intentional Crime is an unlawful act committed by the offender with knowledge. It implies further that the accused has committed the crime willfully and with the full consciousness of its consequences (mens reas is found). In the case of killing, intentional killing is also known as willful murder ( qatl-amd)
Islam imposes punishment for the intentional murder and it is considered as the grievous offence of killing the whole mankind. Even in the case of intentional murder, the relatives of the victim have the right to forgive the offender. They could make a remission and ask for blood money (diyyah) instead. They also could pardon the offender.

Unintentional Killing (Absence of mens rea)
Under Islamic law no death penalty will be given for a killing which was done by mistake or without intention (absence of mens rea).  Unintentional /crime is an unlawful act which the accused does not actually mean to commit a crime but does so by mistake;  (absence of mens rea) or the offender erroneously commits an offence without the intention to violate the law.

" confession must be made without any coercion or compulsion. It must be with free consent. The confession given under threat/inducement or promise is not admissible and moreover and importantly, it should be made in the open court and extra judicial admission/confession carries no legal weight "

Al-Qur’an differentiates between the two kinds of offenders:-
“And there is no blame on you concerning that wherein you made a mistake, (what counts is)The intention of your hearts”(33:5)
“ the Prophet said: “ My people are not accountable for what they do by mistake and inadvertently”.  
There are exceptions for the criminal liability:-

• Done in the exercise of self defence;
• Done in sleep or without consciousness;
• Insanity
• Duress
• Necessity
• Immaturity (including minors.)
• Done in forgetfulness
• Done in error.

If any crime is committed under force or duress or in error there will be no legal liability on the doer.
Islamic law exonerates the offenders, who if it could be proved that the criminal act committed under duress or by mistake, or when the offenders are underage or  suffering from defects such as insanity.

All Elements of Mens Rea
(mental elements of crime) have to be proved
According to the Islamic jurists, in order to establish ‘mens rea’ or intention,  all the necessary elements of the intentional murder have to be proved and if anyone of them was not proved the death penalty (Qisas) will not be imposed, instead diyah(payment) or compensations will become due.   

Adjective/Procedural justice
Al-Quran states:- “O ye who believe, stand out firmly for justice, as witness to God, even though it be against yourself (4: 135)
Adjective/procedural justice is another vital element of justice and without it the justice is incomplete. It provides ample opportunity to an accused to rebut his charge and it also lays down a heavy burden on the prosecutors (in the criminal case) to prove the case against the accused beyond all shadows of doubts. The fundamental rule of adjective justice in Islam provides that no weight should be attached to doubts, fancy or similar things, and that weight should be attached only to certainty or to what may be established by evidence. According to Majelle ( a codified law)‘no validity is attached to conjecture which is obviously tainted by error’(Article 72). In the case of doubt and fancy and they have been dispelled and no weight is attached to them (Articles 4 and 74 of the Mejella).

Islamic adjective law excludes forced confession in hadd(capital punishment) and qisas cases. The coerced or forced confession of guilt or confession taken under duress is not admissible and similarly a forced compromise is not lawful (Qadi Khan and Muuhit Sarakhsi). On the other hand, obtaining a confession under duress, coercion or any other kind of illicit pressure is a crime under Sharia(The Rights of the Accused in Islam, Arab Law Quarterly, Vol. 10) .In the case of fixed punishment sentencing, it is the duty of the court to secretly investigate the case and, ordinarily it should not satisfy itself with the evidence furnished by the witnesses.

Further, under the Islamic law the accused must know the subject matter of the action or the charges and he or she must be given an opportunity to rebut such charges. In the case of confession or admission, it is prerequisite for a valid admission that the person making such a statement should be of sound mind, free from duress and interdiction and should not suffer from any legal disability.
The judge should permit a person who makes a confession or even admission to retract in the case of doubt, based on the maxim of the Prophet who said ‘set  aside punishment when there is doubt(Sayuti-Ashbaah,84).

Under the Islamic law investigative torture is not only prohibited but the act of torturing is regarded as a criminal act(Ibn Hazm, Al-Ghazzali and Shafi school)
According to several jurists, only valid confession is the confession which is made in the open court without any coercion. Further, jurists state that ‘when the accused orally retracts (even through affidavit in modern practice) from his/her confession, no penalty would be inflicted (Rashid Ahamed, University of Peshawar).
It is a fundamental duty of a judge to ensure that that accused gets the maximum opportunity to rebut the charges against him or her. The judges have special and specific duty to make sure that no injustice (like imputing false witnesses, attributing confession or admission given under duress and distress) are done against the accused. A judge should safeguard and protect the accused’ entitlement to adjective justice.

" According to the reports, her statement that she was born in February 1988 was ignored on the basis that her passport indicated that she was born in February 1982. Further according to the reports, the authorities did not take anything seriously to ascertain her real age "

Child-Offender
Under Islamic law a child will be not given a capital punishment for a crime committed by him or her. In the case of child-offender, the Judge has a restricted right to impose some restrictions to the offender which will help to reform him or her or prevent him or her from committing  further crime in future. According to a Maliki scholar Abu Zaid al-Qayrawani, there shall be no hadd (capital punishment) for minors even in respect of leveling a false accusation of unchastity (Qadhaf).

Forgiveness
Islamic law also provides right to the victim’s relatives to forgive the convicted murder. This is the uniqueness of the Islamic law which provides an opportunity for the offender to save his life. No other major legal system provides a right to the victims’ relatives to forgive a person who was convicted of a murder. Islamic law persuades the heir of the victim to forgive by assuring him or her Rewards from Allah.

Miscarriage and Diversion (Confession)
Rizana’s case raises a doubt on the question on whether all elements of mens rea are proved or disproved. It is reported that the first statements made by Rizana were translated by a Malayali translator who is not fluent in Tamil language in which she made her statement. It is also reported that Rizana has retracted a confession that she said to have made under duress, and said that the baby died in a choking accident while drinking from a bottle.
As discussed above, confession must be made without any coercion or compulsion. It must be with free consent. The confession given under threat/inducement or promise is not admissible and moreover and importantly, it should be made in the open court and extra judicial admission/confession carries no legal weight.(Sayyed Sabiq, Fiqh al Sunnah, III) It is the duty of the judge to discount the confession(Iatiraf ) or admission given under the duress and to admit the statement made in the court.

If we accept for the sake of argument that the baby was killed by Rizana, still her punishment should have been mitigated or even she should have been exonerated because there is a strong probability that she was in the state of distress and under duress at the time of the incident. Her heart-breaking story substantiates this contention. Rizana who hails from poverty stricken family migrated to Saudi Arabia at the age of 17 in 2005 to work as a domestic helper. She was not trained as a qualified professional baby sitter. This child who was compelled by the poverty to leave her dear family for a meager income would have certainly undergone a mental trauma which normally results in distress or even depression.

According to the reports, her statement that she was born in February 1988 was ignored on the basis that her passport indicated that she was born in February 1982. Further according to the reports, the authorities did not take anything seriously to ascertain her real age. Again it is the duty of judge to ascertain the age of the accused to ensure that the under aged person or child is not punished with a capital punishment.

Any law which some claim is sharia has to be brought in conformity with the Islamic standard. Rizana’s case shows that there was a very serious miscarriage, misdirection and diversion of Islamic Justice. This judgment will bring disrepute to the great jurisprudence which was a precursor and the foundation for the major jurisdictions of the world.

(The writer is a senior lecturer of Law and International Politics)

source : www.dailymirror.lk