The Position of the Powerless Society
C. The Position of the Powerless Society
The implementation of hudūd by the rulers with political motives that ignore the philosophical foundations of Islamic criminal law, the more so by the despotic rulers in general, have no adequate legal system. A person can be sentenced in hudūd without procedures and adequate legal representation. In addition, hudūd has also generally been applied only to the poor and women, never been imposed whatsoever on the rich, the ruling, or the despots. This is the factors that trigger Tariq Ramadan to call for an international moratorium on qishās.
It is as if one does not know, as though a minor violation is being done to the Islamic teachings. A still more grave injustice is that these penalties are applied almost exclusively to women and the poor, the doubly victimized, never to the wealthy, the powerful, or the oppressors. Furthermore, hundreds of prisoners have no access to anything that could even remotely be called defense counsel. Death sentences are decided and carried out against women, men and even minors (political prisoners, traffickers, delinquents, etc.) without ever given a chance to obtain legal counsel. In resigning ourselves It is as if one does not know, as though a minor violation is being done to the Islamic teachings. A still more grave injustice is that these penalties are applied almost exclusively to women and the poor, the doubly victimized, never to the wealthy, the powerful, or the oppressors. Furthermore, hundreds of prisoners have no access to anything that could even remotely be called defense counsel. Death sentences are decided and carried out against women, men and even minors (political prisoners, traffickers, delinquents, etc.) without ever given a chance to obtain legal counsel. In resigning ourselves
Concern of Tariq Ramadan that qishās is only applied to the weak society and not to the more powerful communities is quite reasonable because qishās, as hudūd, though being derived from al-Qur’an and Sunnah, its application is fully in the hands of the human, the elites of the country, the ruler, or powerful capital owners and the wealthy, as well as other influential circles. This group of people has enough influence to pressure the order so that they become an exception in the application of qishās and hudūd, or even in the entire law. Rule like this usually becomes a sort of unwritten norm.
The State of Brunei Darussalam, that has just passed Perintah Kanun Hukuman Jenayah Syari`ah in 2013 and applies it starting in 2014, affirms the State Constitution that declares the immunity of Sultan (King) and Yang Di-Pertuan namely Yang Di-Pertuan (the ruler) under Pemasyhuran Mengangkat Raja dan Melantik Pemangku Raja, 1959; (S 65/04) stated as follows:
Immunity [S 65/04] 84B (1) His Majesty the Sultan and Yang Di-Pertuan can do no wrong in either his personal or any official capacity. His Majesty the Sultan and Yang Di-Pertuan shall not be liable to any proceedings whatsoever in any court in respect of anything done or omitted to have been done by him during or after his reign in either his personal or any official capacity.
[S 49/04] (b) His Majesty the Sultan and Yang Di-Pertuan can do no wrong in either his personal or any official capacity:Provided that provision may be made by laws enacted under the Constitution for the bringing of proceedings against the Government or any officer, servant or agent thereof, but not His Majesty
191 Tariq Ramadan, An International call for Moratorium on corporal punishment, stoning and the death penalty in the Islamic World , accessed through website of Tariq Ramadan: http:// tariqramadan.com/blog/2005/04/05/an-international-call-for-moratorium-on-corporal- punishment-stoning-and-the-death-penalty-in-the-islamic-world/ on 29 Desember 2014.
the Sultan and Yang Di-Pertuan, in respect of wrongs committed in the course of carrying on the government of Brunei Darussalam. Two rules in the Constitution of the State of Brunei above are understood
in different ways. One understanding mentions that this constitution means that hudūd in Perintah Kanun Hukuman Jenayah Syariah, 2013 and all other laws do not apply to the Sultan and Yang Di-Pertuan, either in personal or in any official capacity. 192 Others say that the understanding of the term Sultan Can Do No Wrong should be likened to the term King can do no wrong in the parliamentary system of governance as applied in the UK. In this system there is a parliament, a cabinet led by the prime minister, and king or queen or a president as head of state. The chief executive is held by the prime minister who heads the cabinet, while the head of the state is only a unifying symbol. In this system the head of state is not responsible for any policy taken by the cabinet. Therefore, errors made by the cabinet cannot involve the head of state. This is the meaning of the term King can do no wrong. If it refers to the term, hence the term Sultan can do no wrong simply means that the Sultan could not be involved in the mistakes made by the cabinet in Brunei.
However, application of the law always involves power relations. Law tradition which gives a privileged position to the ruler, including the law of jinayah with hudūd, which only applies for the people and the weak. Hudūd as the maximum punishment which is supposed to be a tool to eliminate crimes of snapper class or crimes often committed by a country officials are only used to crush petty crimes committed by ordinary people with the limited financial and legal defense.
Rules, written or unwritten, that protect the rulers of the land from hudūd, indicates that the mechanism of repentance and forgiveness has been imposed on them before they do the crime, while the same repentance
192 Ahmad Farouk Musa in a show by YouTube embraces this understanding and considers that the constitution is the one that makes Sultan eager to implement Islamic Criminal Law, because this law will not be imposed on the Sultan and his family. Farouk also likens the term Sultan Can Do No Wrong with the concept of Ma’shum (infallible) in Islamic theology. Quoted on July 5, 2015 from https://www.youtube.com/watch?v=VwbaJlFsvsA.
and forgiveness mentioned in every verse on hudūd is not given and not used as an opportunity by maximum to transform physical punishment to non-physical punishment without ignoring the rights of victims, especially for crimes committed by people in all their limitations. The authorities of the country whose abundant treasure, higher education, and brilliant career, given access to legal representation, are forgiven easily, even immune to hudūd. Meanwhile, people with all the hardships such as poverty, low education, employment uncertainty, burden with the lives of many, are given the maximum penalty in jinayat; this condition, of course, is contrary to the spirit of Islamic criminal law.
The implementation of hudūd, according to Asghar Ali Engineer, should consider two categories of crimes, crimes caused by an urgent need, and crime due to the naughty in character. The first type of crime, often committed by poor people, should not be punished or only being lightly punished,such as stealing because of starvation. As for the second type of crime, driven by evil nature, the perpetrators must be severely punished such asrobbing, selling drugs, illicit trafficking, loan-sharking, put-in- stack most needed commodities, deceiving and so forth. This type of crime is not only annoying personal interests, but also the interests of society as a whole. It is not ordinary crime, but a crime which has hazardous damage ( fasad) . 193 These include human traffickers (not their victim), corruptor, illegal loggers, terrorists, and other perpetrator of high profile crimes. It is them that should get the maximum penalty for criminal law in Islam.
For the petty criminals, the first-timers, because of ignorance or no sufficient information, the impact is not so massive, and then repentance and forgiveness guaranteed in al-Qur’an can be taken by the authorities to serve as the basis for lighter punishment without ignoring the rights of victims. In contrast to felons, the old-timers, the ruling should be careful not to fall pity on them given the damage which is massive. Not the other way around, to the hard-edged criminals the rules dare not to be decisive because of threats or enticements in the form of lucrative bribes, while to the petty criminals,
193 Engineer, Islam dan Teologi Pembebasan, p. 260.
they are extraordinarily adamant. The application of jinayat in Islamic law that discriminates against the weak society like this will only make a weak group in a Muslim society, especially the poor, women, even more poor women, be casualties of oppression in the name of religion.
The above description indicates a problem related to the concept of hudūd itself, i.e., whether hudūd is God’s provision that cannot be contested, or rather restriction as ordained to open space for interpretation as long as it is still working within the limits of the corridor. Besides, problems also arise concerning whether hudūd should be understood literally, limited to what is mentioned in the texts of al-Qur’an and Hadith, or understood contextually so that it can include moresophisticated crime in modern time. The implementation of the literal hudūd which are going on in the modern state has the problems related to the dialectic between text and reality. Social changes that occur continuously can incur other forms of crime that once considered of high profile it is now petty because of the emergence of the new type of crime such as theft by corruption. The scholars have actually provided the scientific tools to address this through the concept of ijtihad, either Ijtihad Bayani (al-ijtihad min an-nushus), Ijtihad Qiyasi, and as well as Ijtihad Istishlahi.
The impact of the literal understanding of hudūd, other than limited types of hudūd, is the vulnerable position of women to experience the “revictimization” because of gender inequality.