PROCEDURAL SPECIFICITY IN HUDUD AND QISAS CASES

خصوصية الجانب الإجرائي في قضايا الحدود والقصاص

Abstract

This paper discusses an important issue in applying hudud and qisas laws, which is the need to consider the special procedural aspects of these cases in both legislation and practice. Because, it is noted that this aspect has not received enough attention at either the legislative or practical level.

The paper tries to highlight this issue by examining the clear approach of the Libyan Supreme Court, which is shown through its position on a recent procedural question that arose when applying the Libyan Qisas and Diyah Law, specifically, whether Wali Al-Dam is allowed to attend court hearings and present argument. In its ruling on Criminal Appeal No. 47/56 Q, the Court departed from its earlier principle in Appeals Nos. 113/62 Q and 46/63 Q, which had held that a judgment was invalid if the court allowed Wali Al-Dam to attend and plead. The Court instead established a new principle, ruling that such attendance does not invalidate the judgment.

Finally, the study concludes that Libyan laws on hudud and qisas should be reviewed and amended to include appropriate procedural rules, similar to the substantive ones, in line with Islamic Sharia principles—especially in matters of evidence—to ensure the proper application of these laws in combating crime.