UAE: Court sets precedent for death penalty application

ABU DHABI -- The emirate's highest court has ordered a convicted murderer to be retried under an alternative Islamic school of legal thought that may allow for him to be sentenced to death.

The ruling by the Abu Dhabi Court of Cassation is a legal precedent in a case in which the killer was sentenced by two lower courts to 15 years in prison, instead of the death penalty, because he was a Muslim and the victim was not.

Abu Dhabi courts and the Federal Supreme Court hear cases under the Maliki school of Islamic legal thought, which includes rulings that a Muslim who murders a non-Muslim cannot face execution.

In this case, the Abu Dhabi Court of Cassation ordered it be tried under Hanafi teachings, the only Sunni school of jurisprudence that calls for the death penalty if a Muslim kills a non-Muslim.

The current case, from 2008, involved a Sudanese Muslim man who murdered a Christian woman from Ethiopia by stabbing her 17 times.

The Abu Dhabi Criminal Court of First Instance found him guilty of premeditated murder, sentenced him to 15 years in prison and ordered him to pay Dh100,000 in blood money.

The Abu Dhabi Court of Appeals upheld the sentence and public prosecutors appealed the case to the Court of Cassation.

Prosecutors presented two main arguments. They said it was in the interest of the country to try Muslims and non-Muslims under Hanafi to ensure equality for all residents. They also said the victim was a legitimate resident and therefore entitled to protection, security and sanctity for her "blood, honour and money".

Chief Justice Al Siddiq Abulhassan Mohammed of the Court of Cassation agreed, overturned the sentence and sent the case back to the appeal court to be tried under Hanafi. The appellate court sentenced the man to death.

Court of Cassation rulings are binding on local courts, so judges in the emirate will be required to treat the murder of a non-Muslim in the same light as that of a Muslim. Murder cases are tried under Sharia, which requires the death penalty if the victim's family demands it.

Dr Ahmed al Kubaisi, the head of Sharia studies at UAE University, praised the ruling which he said considered the wider and long-term interests of the country as ordained by Sharia.

Dr al Kubaisi said Islamic law required judges to use their discretion when there was a conflict between justice and politics.

"In Islamic jurisprudence judges can announce that a person is sentenced to death in accordance with Sharia but should not be killed in consideration of politics," Dr al Kubaisi said. "In Islamic law the interests of the nation precede the interests of the individual.

"Justice that safeguards the interests of the whole nation is preferable to that which safeguards the interests of the individual. The ruling is completely sound according to Islamic law."

The Hanafi school is one of four schools of jurisprudence in Sunni Islam, and the oldest.

Hanafi scholars argue that Sharia requires the death penalty for all murderers regardless of their religious background. They note that an Islamic text that prohibits the killing of a Muslim for taking a non-Muslim life was meant to be applied only in times of war.

The Court of Cassation's ruling is final, and not subject to appeal.

Source: The National, December 30, 2010