Definition of Ta’zier (Discretionary punishment)
5. Definition of Ta’zier (Discretionary punishment)
Ta’zier means punishment for immoral behaviour or crimes that is not regulated in the Qur’an or Sunnah. Categories of punishment are administered by the discretion of nation state under judge or (Imam). The nation state is responsible to regulate categories or types of punishment to prevent of the recurrent of crimes to create social welfare.
Immoral behaviour refers to committing acts or saying which are prohibited under religious teaching, or fail to perform religious duties. Jurists categorise the immoral behaviour under three types: first, immoral behaviour that is punished under had, like jarimah hudūd, qishās and diyat; second, immoral behaviour that is punished by kafarat (expiation), such as having sex while fasting, dzihar, unintended murder and many others. Third, immoral behaviour that is not regulated under hudūd or kafarat. The third type of immoral behaviour is subject to be imposed by discretion of judge.
The objective of discretional punishment is to create a social welfare through justice, security and wellbeing. The establishment of punishment aims to create a harmonious community. Social stability may be ruined if theft, The objective of discretional punishment is to create a social welfare through justice, security and wellbeing. The establishment of punishment aims to create a harmonious community. Social stability may be ruined if theft,
Thus, the punishment is a way ( wasail), not an objectives (maqasid), to create social welfare, and it is flexible in nature and elastic ( ghoiro thubuth), while its objective is static. Qur’anic verses and hadith about qishās and hudūd is clear occurance (qath’iy), nevertheless, to implement those texts are considered supposition ( zhanny) because of many contextual differences such as social, cultural and economic contexts.
One important aspect to be considered in implementing the punishment is social context. The Prophet’s companion, Umar ibn Khattab, refused to implement qishās for the thief (amputed the thief ’s hands) and offered to pay diyat instead which was lower and lighter than the stated punishment. Umar consideration on this matter was based on the social condition at that time when famine stroke the nation and it was unsuitable to implement punishment of amputation of limb. 86 Narrated the Prophet Muhammad: ” la qath’a fi maja’ati muththarrin/ no amputation of limb for punishment in the forced or desperate condition because of economic hardship” . Thus, in implementing the punishment, social and economic condition should be taken into consideration besides the strict regulation stated and stipulated by ulama like the case of Umar sated above; otherwise, its objective to make social welfare is unfulfilled.
The above mentioned explanation informs us that there are choices to be considered in implementing the punishment and hudūd or qishās should
be the last option offerred or implemented. Muhammad Iqbal Shiddiq categorised Islamic Criminal Law into four, namely: (1) punishment is given as the last resort when there is no other option available; (2) punishment as
a learning process; (3) punisment as a reformative attempt; (4) punishment as retributive process. 87
86 Audah, At-Tasyri’ al-Jina’i, vol. 2, p. 540. 87 Rifyal Ka’bah, Pidana Islam Sebagai Pelaksanaan Syariat Islam di Aceh (Islamic Criminal
Law and its Implementation in Aceh), p. 12 retrieved from http://islamic-law-in-indonesia. blogspot.com/2010/02/pidana-islam-sebagai-pelaksanaan.html on 3 of February 2015