Browsing by Author "Ramizah Wan Muhammad, Ph.D"

Restorative justice (hereinafter referred to as RJ) concept is recognised and practised globally; many legal systems have begun to recognise the principles of RJ four decades ago. Meanwhile, the Saudi legal system which derives its authority from Shari'ah recognises and implements many principles of RJ since the establishment of the Kingdom of Saudi Arabia. Shari'ah practices such as reconciliation, mediation, intercession, mercy, forgiveness, pardon, compensation and others are implemented in the Saudi criminal justice system; however, the concept of RJ is not recognised per se. Therefore, the objective of this research is to investigate the principles and practices already implemented in the Saudi criminal justice system that are of an RJ nature, and to introduce them to be recognised as "Restorative Justice system-نظام العدالة الإصلاحية". Moreover, it aims to examine New Zealand and Canadian RJ practices to adopt potential approaches within Saudi criminal justice system as experienced and practised in those countries. The research depends on doctrinal and non-doctrinal, namely empirical, research methodologies; the doctrinal is based on primary and secondary sources of Shari'ah, legal systems, and case laws/judicial rulings of Saudi, Canada, and New Zealand. The empirical study depends on in-depth and semi-structured interviews with judges and reconciliation officers from Saudi. Undoubtedly, RJ is practised as a prime method within the Saudi criminal system; however, it is lacking essential tools to be fully implemented as it is practised in other systems. These tools are the alternative sentences which were suspended in 2015 due to lack of mechanism to regulate the practice of these alternatives. From the experience of New Zealand and Canada, contracting with private service providers is one of the solutions to facilitate the implementation of RJ practices. Adopting an RJ framework within the Saudi judicial system is going to have a significant impact in acknowledging, at the international level, the remarkable practices and efforts of the Saudi judicial system in dealing with crimes restoratively.

The purpose of this thesis is to identify issues related to the use of imprisonment as a general form of punishment in the Penal Code of Maldives and to propose areas of reforms to the punishment of imprisonment to Maldives. In this study two main areas for reform were identified; firstly, since Maldives is a 100% Islamic country, the philosophies, aims, purposes of punishment and punishment of imprisonment were identified from Islamic Shari’ah. Since confirmation to the tenets of Islam is a requirement for all laws in Maldives by its constitution a Shari’ah punishment benchmark was derived under Article 10 of the Constitution of Maldives 2008. It was established that Shari’ah punishments were of 3 main types in Islamic criminal law, these are hudud (fixed), qisas (retaliatory) and ta’zir (discretionary) punishments. To suggest Shari’ah reforms to the Maldivian Penal Code, Islamic penal systems from Brunei Darussalam and Malaysia were analyzed. Secondly, for the reduction of meting imprisonment as a general form of punishment, different types of alternative punishment forms and application of penal laws were identified from the Nordic region where the penal systems in the Nordic region seldom used imprisonment unless for major crimes; and even in the instances of imprisonment, the punishment is focused on reforming the offender. The Nordic penal punishment model was found to be more compliant with the punishment philosophy of Shari’ah. This research identified that Maldivian Penal Code 9/2014 had imprisonment as a primary punishment form for all types of offences and an unrestricted discretion on punishment was given to judges. It was also found in this study that Maldivian prisons were not suitable to keep prisoners as they are not operated in accordance with laws of Maldives, Shari’ah punishment objectives and international human rights conventions and treaties. To identify areas of punishment reform all the 160 offenses mentioned in the Penal Code of Maldives 9/2014 were analyzed under the Shari’ah benchmark, it was found that offences that are applicable under hudud or qisas categories were allocated imprisonment sentences. In order for the penal laws of Maldives to comply with the Shari’ah benchmark whilst reducing imprisonment as a general form of punishment and introducing alternative punishment forms, it was recognised in this research that Maldives would have to follow a mixed model of a codified Islamisation model in terms of hudud and qisas punishments and a harmonization reformation model in terms of reforms on alternative forms of punishments under ta’zir. The findings of this study will help stakeholders in reforming Maldivian Penal Code with reference to the punishment of imprisonment to be compliant with the Shari’ah, Constitution of Maldives and international best practice.