x Abu Dhabi, UAETuesday 16 January 2018

A system for compensating victims that needs fixing

Take our poll: In the UAE and elsewhere in the Arab world, there are moves to reform the system of blood money.

In pre-Islamic Arabian history, a cycle of revenge between two major tribes was triggered by the killing of a camel. The two tribes fought a vicious war that was said to have lasted for 40 years. Islam adopted a system of compensation in a bid to put an end to such cycles of violence, which were rampant in the area at the time.

But today in the UAE and elsewhere in the Muslim world, this mechanism for distribution of justice is subject to abuse. Centuries after its creation, the system of blood money - diyya - needs to be revisited.

Sharia stipulates that if a person commits a murder, the family of the victim can demand the death penalty, accept diyya (the Hadith suggests it be equal to the value of 100 camels) or forgive the killer. The process requires an understanding by the adult members of the victim's family, who are entitled to inheritance, that they will not seek further retribution. In cases of wrongful death and physical or mental injuries, diyya must be paid to the person or their dependents. Diyya is also required for livestock killing.

As a former justice and courts reporter for The National in Abu Dhabi, I often discussed the issue of diyya with lawyers and legal experts. Four areas of possible reform stand out:

First, the concept of aqela (the male family members of the convicted who are required by Sharia to pay diyya in cases of wrongful death) is in need of reconsideration.

The purpose is to foster a sense of familial responsibility of a person's mistakes, ensure speedy payment to the victim and encourage responsible social behaviour. However, social dynamics have changed and families no longer feel obligated to pay for a family member. As a result, many people can linger in jail for years after serving their prison sentence because they cannot afford to pay (diyya in the UAE is equal to Dh200,000 per victim).

Consider the case of Humayun Al Rahman, a 24-year-old from Pakistan, who was sentenced to three years in prison for causing the death of 10 people in a traffic accident in Dubai. He completed his sentence in 2008 but is still in jail for failing to pay Dh2m worth of diyya. Al Rahman is stuck in a Catch-22, where he cannot be released without paying yet cannot pay while he is in prison. Nor is his family able to pay for him.

Al Rahman's case is complicated by the number of casualties and the possibility of leaving the country if he is released. But his case and so many others could be solved if the concept of aqela is broadened to include a person's country, community or place of work. In Sudan, for example, the community or the government is required to pay the diyya if the person cannot afford to pay.

Under this system, if Al Rahman were released and left the country before the payment was made, it would become the responsibility of his country to ensure the payment to the victims' families. In countries like the UAE, where many communities exist, each community might also create a special fund to cover such cases.

A solution is needed. Keeping a person in jail for failing to pay a diyya is not compliant with Sharia nor with the UAE constitution.

Second, insurance companies or employers should be forced to make good on their commitments. It is common that insurance companies avoid the payment of diyya under various pretexts. In one case, an insurance company refused to pay the diyya for a driver, arguing that the contract states the company is liable for any "road" accidents, while the accident occurred "off road". Two lower courts accepted the company's argument but the Supreme Court ruled the argument is fallacious and ordered the company to pay.

That was the exception, however. Many other companies often avoid honouring their obligations because claimants do not pursue the case to higher courts, or have incompetent lawyers.

Third, some courts still consider diyya for female victims to be valued at half the diyya for men. The courts of Abu Dhabi and Dubai order equal diyya for men and women, while federal courts give half the diyya for women based on the inheritance law. But, unlike in the past, women are now also breadwinners and they must be treated as such in the courts of law.

Also, equal diyya for women goes beyond the financial significance. In pre-Islamic days the system of blood money varied from one tribe to another, and served to assert tribal or individual supremacy. Under Islam, the mechanism was regulated and the value of 100 camels was set as the standards diyya payment, partly to cultivate equality. This system of equal treatment must be extended to gender, and courts must be the agencies of promoting this fairness.

Fourth, diyya can be abused in cases of physical or mental injuries. In such instances, victims can claim to be injured in ways that are difficult to prove medically. In one instance in Al Ain, a man claimed he lost his sense of smell in a traffic accident and demanded diyya for it. In another case in Fujairah, a motorist was ordered to pay Dh2 million in diyya for causing damage to a man's memory, consciousness and brain. Lower courts ordered diyya for each instance of harm, but the Supreme Court amended the ruling, calling for payment to compensate brain damage only.

In western countries, victims of crimes or their dependents can apply for compensation, expenses or benefits. The case of Al Rahman, and many others like him, is complicated by the antiquated application of a Sharia principle. That principle must be revisited to establish its purpose and context.



On Twitter: @hhassan140