سلطة القاضي في تفريد العقوبة في الشريعة الاسلامية والقانون الوضعي

Abstract

.> ... This research handled the theme, of "The Powers ,of the Judge ,in Setting JlD'''~'L ,-;r,( ',' .~' . the Punishment in Islamic Sharia and the'Objective:Law." ','" '\~7 - . ";; -(::;:~ ,'.' ~ . " . .'"{,i,~ The research deliberates the :discretionary po~~~lii'oiigthe~;imina:l court , , " '~""1!,\i " " judge, through which lie a:~l"ives at the fair judgement ~'d' Su'itable penalty, for the person of the ~~minal' and his: l?U;rouriding9ircums~:i!nces. This'is ',,,.rri ved at by the applicatio~: of the t~t on the i~di v:td~ai inc~~'ents', ,so as to'-',?-chieve . '." . . that end. , . ,,' . " .';" In essence, this means 'knowing', the extent oi' ·the abi,+itY,o'f the -judge,,·to _ • ". ,t" .~,~- ~V·., . ,pare between' the actual circumstances presented to ifim,itarid.'those of the -'. .; " The pUl"pose is :to choose the' criminal penalty; whether,' that' was a punishment, precautiop.!'Xy arrangement or a fate w.. i thin the legally -determined p. :r:." o,yi~i6.n s; a way which may, accomplish tlie indiVidual and social interests. " As the criminal court judge is the one who the persons who commit'the unlawful acts are' presented to, he must be able to monitor their circumstances and forec~st about the consideration which determine the just and. suitable ,ment'for ·each offender. So, he Can arrive at justice and SUitability of

punishment. The research is divided into three ;Chapters. Chapter one handled the status or"the criminal court judge and his discretionary powers in setting apart 'the puni':ipme;'t in Shari a and the objective law". It dealt with the quiddity of the judiciary; as far as the definition and the appointment ~nd dismissal of

the' judges and the powers of the criminal court judge in the setting apart of 'the punishment. It was then exposed that the discretionary powers of the judge, in the Islamic Sharia, is confined to 'Tazeer' crimes; but, not including the penalties for 'Hudood' and 'Qasas' crimes. Meanwhile, these powers and inclusive of all penalties in the objective law. ; Chapter two discussed; "The criminal policy and the setting apart of punishment in the Sharia and the Law". It dealt with the criminal policy and 'its relation'to setting apart of the punishment; together with the criminal under the criminal policy. Hence, the essenCe of the criminal policy and the types of criminal penalty of precautionary arrangements were exposed. Chapter three, which is the last chapter, dealt with the topic of (setting apart of punishment(. The nature of this topic about penalty was discussed, 'together with its controls and teChniques. There are several kinds of setting apart, of which is the judicial type. There are also great numbers of controls which may guide the judge in setting apart the penalty. There are also great numbers of ways and means which the legiSlator grants to the judge, to enable to the setting apart of the penalty. t., •• -~2 - , .. The findings of the research made way to recommendations; the most important of which are as follows:- 1. The qualifying of the criminal court judge and his specialization are important guarantees of judicial setting apart in Islamic Sharia and objecti ve laws. 2. The discretionary powers of the setting apart of the penalty, have no contradiction with the principles of Sharia. This is because these powers operate under the law, in accordance with certain limits. Therefore, they are considered discretionary power, and not dete~inistic powers. 3. The discretionary powers of the judge, in the setting apart of the punishment in Islamic Sharia, are expressed in the 'Tazeer' crimes ,only; but not in 'hudood of qasas' crimes. Yet, they are inclusive in all crimes in the objective laws, save for any exceptions provided for. 4. There is a rational criminal policy in the Islamic criminal system. \, This is why it is a consistent and stable system for long years, as opposed \ to the objective laws. , '\ 5. The modern criminal policy has been affected by the criminal and so, cial sciences. It has become interested in the causes which lead to crimes. Tne purpose is to confront these causes~ for protective and treatment aims.

\ 6. The modern modern criminal policy cares for the personality of the crlminal; for his re-adaptation again in society. Thus, the setting apart of th~ punishment is considered one of the main basis for achieving this objecti

, in ,which the offender finds the suitable penalty. , 7. The judicial setting apart has many controls, whether these were to the p'erson of the offender, or the crime. The judge is guided by these 'controls, so that he may not lose the way and transfers his powers to despotism and having his own way. 8. For the judge to practise the judicial setting apart, the legislater 'must gran,t him a group of penal systems; to avail him of choosing the suitable penalty for the personality of the offender and the circumstances of the crime, such as, the commutation of the penalty or inflicting a severe penalty.