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‘Diyat’ option and the Federal Constitution

Muslim Lawyers Association says an amendment is required, but there's a way of getting around it.

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PETALING JAYA: Introducing the Islamic provision for “diyat” as an alternative to the pardon of death row convicts will require a constitutional amendment, according to the president of the Muslim Lawyers Association, Zainul Rijal Abu Bakar.

He was commenting on the Pahang Pardons Board’s plan to adopt the alternative. “Diyat” in Islamic law is the payment of compensation to victims or their heirs in cases of murder, physical harm or property damage.

Speaking to FMT, Zainul quoted Article 42 of the Federal Constitution, which states that the power to pardon lies solely in the hands of the Yang di-Pertuan Agong or the sultan of a state.

However, he added, there was a way of getting around a constitutional amendment.

“If the authorities want to implement diyat without a constitutional amendment, the pardons boards need to amend their standard operating procedures to give the families of victims an option for compensation before making their recommendations to the King or sultans.”

The Yang di-Pertuan Agong or a sultan could then take the family’s wishes into consideration when deciding on clemency, he added.

“But this option cannot be seen as a right of the convict or his victim’s family,” he said.

“For example, if a serial killer is to be executed, then perhaps the diyat shouldn’t be an option even if all the victims’ families agree to it because the person is a threat to society.

“So the important thing is for the entire process to be transparent, from the method of calculating the compensation to the other processes involved, including the recommendations of the pardons board.”

Zainul said the plan to introduce diyat wasn’t a bad idea as there would be people who would be unhappy if a murderer were to be pardoned. They might think that the interests of the victim’s family and society at large had been ignored, he added.

“Some feel that if a convict is pardoned or has his sentence commuted, that there is no justice since existing laws don’t provide compensation for victims,” he said.

“During Prophet Muhammad’s time and some time after that, diyat was common,” he said. “They called it blood money then.”

Zainul said diyat would be applicable only to crimes in which there were victims and not crimes like drug trafficking.

The Pahang Pardons Board’s plan to adopt diyat was announced on Tuesday by the regent of the state.

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