The Dominant Motives

A. The Dominant Motives

Waves of hudūd implementation in the present day have a close connection with the struggle among groups for power in a post-colonial state. The struggle for influence between the modernist and conservative Muslims occurred in almost all Muslim countries. Modernist-socialist group wants the state to be colored with Islamic values without having to accentuate its Islamic identity. On the other hand, the conservative-Islamist group believes that Islamic identity should be affirmed to distinguish between Islamic and non-Islamic identity.

Colonialism that lasted long accrues to animosity of all considered western, since trauma of its atrocities has not yet been recovered. In some places, this is compounded by ethnic tension or drawn-out civil war for power. This situation adds to a sense of insecurity and fosters implementation of Syari`ah which has long been believed to be a path to success in the world and the hereafter. This longing for ‘true” Islamic identity has intensified into Colonialism that lasted long accrues to animosity of all considered western, since trauma of its atrocities has not yet been recovered. In some places, this is compounded by ethnic tension or drawn-out civil war for power. This situation adds to a sense of insecurity and fosters implementation of Syari`ah which has long been believed to be a path to success in the world and the hereafter. This longing for ‘true” Islamic identity has intensified into

Power struggle going on in Muslim countries after the end of colonialism takes place in a democratic peaceful manner up to a bloody coup. In Pakistan, for example, a change of leadership in the country is often tinged with a coup. Overthrows from General Iskandar Mirza by Ayub Khan in October 1958, from Ayub Khan by General Yahya Khan in March 1969, from Zulfikar Ali Bhutto by Zia-ul Haq in 1977, and from Nawaz Sharif by Parvez Musyarraf in October 1999, are illustrations to point out. Likewise, the situation occurred in Sudan. The country’s succession is often marred by

a bloody coup. For example, from Ja’far Numeiry to General Abd Rahman Suwar adh-Zahab on April 5, 1985, and of Sadiq al-Mahdi to General Omar al-Bashir in 1989. In the middle of this power struggle, Islamic criminal law came into force in Pakistan in the year 1979 and in Sudan in 1983.

The debate over giving the meanings of Islam as the country’s identity continues today in Muslim countries. Modernists demand Islam to be closer to the spirit of the original and the spirit of modern times as in Muhammad Ali Jinnah and Muhammad Iqbal in Pakistan, or Islam is more focused on the application of Islamic values and not Syari`ah law, particularly concerning the Islamic criminal law, as pr o moted by the party UMNO (the United Malays National Organization), the main party in Malaysia. 181 However, a group of conservative Muslims in Pakistan has the opposite view; they say that Islam should be oriented t o the past in the formulations of Islamic history or make God’s law as th e sovereign law by way of its application in the law as a whole, as required by the PAS ( Parti Islam se-Malaysia) in Malaysia .

Changes in the name of the state, between the Islamic Republic of Pakistan and Republic of Pakistan, indicate the pull strength between the modernists and conservative Muslim in Pakistan. Similarly, the change happened in the

181 Taufik dan Samsu, Politik Syariat Islam, p. 138 .

hudūd ordinance degrading non-Muslim’s and woman’s testimony in judicial proceedings of 1979 in which some parts of the ordinance are subsequently amended through the Protection of Women (Criminal Laws Amendment) of 2006. Something similar happened to Enakmen kanun Jinayah Syariah passed in 1993 in Kelantan state, Malaysia, promulgated by PAS but until now this Qanun cannot be applied because it is considered to be contrary to federal law controlled by UMNO. Qonun Jinayat Law of Aceh received

a similar fate. This Qanun Aceh was passed by Parliament in 2009, but was rejected by the Governor of Aceh until it became ratified in 2014 with changes according to the agreement.

The application of Islamic criminal law in Sudan has been dramatic when Ja’far Numeiri’s regime that ruled for 16 years (1969-1985) took power after

a military coup. Originally known as secular nationalist regime, at the end of his reign he suddenly became Islamist. On 8 September 1983 Numeiry issued a presidential decree that enforces Islamic Syari`ah as the only law in Sudan. More than 20 policies, laws and regulations formulated in haste were announced by Numeiry every week in the media. This change is considered due to the increasing strengthening of Islamic revivalism, the potential for political opposition, as well as the desire to control and cooptation of these forces in Sudan. 182 One of them is the Qanun al-Uqubat of 1983 governing cases of theft, robbery, khamer, adultery, qadzaf, and apostasy, which introduces specific sanctions as punishment of hand amputation, flogging and stoning.

In many Muslim countries, the rights to legislate are in the hands of parliament with representatives of political parties, either of nationalist, secular, or of Islamic. Representatives of Islamic political parties in the parliament do not necessarily have a background in Islamic studies, in particular the law of Islam, even more representatives of secular nationalist parties. Yet it is they who have the right to formulate and approve laws including what are related to the Islamic penal code. The same thing happened to the executive branch which is more political institution and

182 Taufik dan Samsu, Politik Syariat Islam, p. 115 182 Taufik dan Samsu, Politik Syariat Islam, p. 115

Political motivations that characterize the implementation of hudūd in various Muslim countries have led more to fulfill desires of the political elite than to realize the objectives of Syari`ah law for the public benefit in general. The implementation of hudūd is thought by Asghar Ali Engineer as having dumped the philosophical values of Islam; it tends to work mechanically without adequate understanding an d necessary awareness of its correct philosophical and spiritual perspective. 183 Furthermore, Engineer argues that the Islamic penal code should not be separated from the mission of morality led by the Prophet to build a society based on distribution of justice (Q.S. Al-Baqarah, 2: 195), equality of human and fear of Allah ( atqa), worship only to God (Qur’anic verse al-Hujurat, 49:13), equality of men and women in particular (al-Baqarah, 2: 228, al-Ahzab/33: 35), and justice in general (al-Maidah 5: 8). Islamic criminal law is not only based on these principles, but those principles have become patterns of known human daily values.

Abandonment of vision in Islamic c riminal law has further showed impulsive attitudes by those in c h arge of its implementation. Although the hudūd is governed directly by al-Qur’an and Hadith, the assessment of whether someone has committed a crime punishable by hudūd or not is entirely decided by people, in this case the authorities. Therefore, the authorities and their colleagues could escape the hudūd despite the crimes they did. Instead, political opponents, the poor, women, and those who do not have access to justice are of t en subjected to hudūd without adequate verification procedures.

183 Asghar, Islam dan Teologi Pembebasan, p. 256.

On the one hand, the formalization of Islamic Law becomes a very effective tool to gain political support from the wider community, but on the other hand the formalization of Islamic Law in the field of criminal law can be used to silence political opponents and take repressive measures on the people in the name of Islam. Shifts in the meaning of some key words in Islamic law are quite serious in some cases. For example, the shift of meaning in the term of Islamic Syari`ah which is reduced to criminal law, and sometimes narrowed again on hudūd, and hudūd implementation itself is done without taking into account the values of monotheism and humanity as prophetic missions of Islam. Political motives dominate modern implementation of hudūd in order to make hudūd part of applied doctrines ( al-Ahkam al-amaliyah), ignoring the foundation of hudū d , namely the doctrine of Tawhid (al-ahkam al-i’tiqadiyah) and moral teachings (al-ahkam al-khuluqiyah). 184 When hudūd becomes a tool to silence people, it has lost the spirit of tawhid

(monotheism), because monotheism or submission to Allah requires absolute obedience not to other than God, including the authorities. In the history of the prophets, monotheism becomes powerful ammunition in the fight against tyranny, injustice, oppression, slavery, despotic authorities, economic inequality, discrimination against women, and other inhumane attitudes. If the implementation of hudūd is led to impulsion and inhumanity it would be deemed contrary to the spirit of monotheism. Similarly, the implementation of hudūd which provides justification to the authorities to do capricious actions on their people contradicts Islam, because it humiliates human values. A shift in motive to implement hudūd can bring a shift in the main agenda of Syari`ah law, and particularly in the implementation of hudūd.