Rajm (Stoning to Death)

C. Rajm (Stoning to Death)

The validity of rajm, stoning a convict alive to death, has been a heated debate since classical Muslim scholars. However, up until now the practice of

mention about cutting feet. It is in the hadith narrated by Imam Daruquthni which mentions about cutting foot for the third theft offender not the second time.as stated in Hudūd ordinace of Kelantan Malaysia and Brunei.

عَنْ أَب ِ ى هُرَيْرَةَ عَنِ النَّ بِىِّ -صلى الله عليه وسلم- قَالَ » إِذَا سَرَقَ الس َّ ارِقُ فَاقْطَعُوا يَدَهُ فَإِنْ عَادَ فَاقْطَعُوا رِجْلَهُ فَإِنْ عَادَ فَاقْطَعُوا يَدَهُ فَإِنْ عَادَ فَاقْطَعُوا رِجْلَهُ

(Ad-Daru Quthni, Sunan ad-Daruquthni, v. 8, p. 184. Other possibility is related to cutting feet is referred to the had for armed robbery had hirobah in which one of the punishment is by cutting foot (Qur’anic verse al-Maidah/5:33). However, if it is based on the hadith above, the question emerged whether this hadith can be used as a basis for had implementation that differ from that of stated in the Qur’an. Besides, If Kelantan and Brunei are followed this hadith why it is implemented for the second offender and not to the third as stated in the hadith? And if it is being connected with the had hirobah, these two crimes are regulated differently in the Qur’an.

rajm is still found in many Muslim communities, whether based on written rules and unwritten custom rules. Women Living under Muslim Law (WLUM) notes that this punishment has been practiced since the ancient times. The Greeks implement rajm for prostitution, adultery, and murder. The Jews, after the written law Taurah and the oral law Talmud, implement rajm for murder, blasphemy, and apostasy. 166

Rajm is not recognized in the Qur’an, but the rule of law that endorses rajm is found in the hadith of the Prophet and the books of fiqh. As for the state legal system, rajm is increasingly prevalent in Muslim countries particularly from the late 20th century to early 21st century along with the rise of political Islam. Muslim communities implement rajm as a punishment for adultery in men and women who are married ( muhshan). In Mapping Stoning in Muslim Context, WLUM notes that predominantly Muslim countries have done efforts to legalize rajm.Rajm itself has been implemented earlier on behalf of customary law.

Table1

Rajm in Muslim Countries 167 No Country

Condition

1 Afganistan The state law does not recognize rajm except during the reign of the Taliban. However, the practice of rajm is customarily found and is still ongoing.

2 Brunei The State recognizes the rajm in Perintah Hukuman Kanun Jenayah Syariah , passed in 2013 and became effective in 2014. Until now, the practice of rajm has not been found, either on behalf of state law or adat.

166 Mapping Stoning in Muslim Context, accesseed Desember, 23, 2014 from http://www. wluml.org/resource/mapping-stoning-muslim-contexts. 167 This table was compiled from Mapping Stoning with the addition of Brunei and refinement to

Indonesia by the authors in accordance with the existing development at the time of this writing .

3 Indonesia Rajm has been included in the proposed bill of Qanun Hukum Jinayat Aceh in 2009. Up to now, Qanun which has been passed does not contain rajm . Rajm was practiced by Ja’far Umar Thalib, commander of the Laskar Jihad, who stoned a follower named Abdullah in Ambon on March

27, 2001 due to a case of adultery. 4 Iran

Rajm has been recognized in the Islamic Penal Code of Iran up to now. Iran is

wellknown as the country which does rajm the most in the world.

5 Iraq Rajm is not recognized in the Iraqi Penal Code, but rajm is practiced with its association with the tradition of honor killing, the murder of those deemed have wounded family honor.

6 Malaysia Rajm has been in Enakmen Kanun Jenayah Syariah Negeri Kelantan since 1993 and in Enakmen Kesalahan Jenayah Syariah (hudūd and qishās) Negeri Terengganu since 2002. But until now, these two enakmen cannot

be applied to cases of rajm does not occur, either in the name of the law or customary.

7 Mauritania Islamic Criminal Law has been applied in Mauritania since 1983. This law requires adulterers to be stoned. Nevertheless, the practice of rajm has not been found in this country.

8 Nigeria Syari`ah penal code that includes rajm passed in 12 of 36 states of Nigeria during 1999-2001. There are many cases leading to rajm in the court, but so far executions by rajm , whether for legal or customary law, are not found.

9 Pakistan Rajm is in the hudūd zina (Zina Ordinance) since 1979 but was amended in 2006 with the enactment of the Protection of Women (Criminal Laws Amendment). Although the process of proving adultery is tightened, but rajm still exists in the legal system of Pakistan. So far the practice of rajm in the name of state law is not found, but it is found in the name of customary law.

9 Qatar Rajm is recognized in the legal system in Qatar. But no one has found a legal case that ended with rajm.

10 Saudi Arabia The Saudi monarch doesn’t have the Syari`ah Criminal Law. Legal decisions are handed over to the appointed Majelis Shura. They are given the right to impose sanctions, including rajm sentence. In the last ten years, the application of rajm is not found, but there are cases punishable by rajm, and then they are being relieved in other forms of punishment.

11 Somalia Rajm is imposed only in the area of southern Somalia controlled by Muslim groups like al- Shabab and Hizbul Islam. They apply rajm to muhshan adulterers and homosexuals. Rajm is practiced in this area.

12 Sudan Rajm is recognized in the Criminal Code since 1991 that apply nationally. Rajm is still recognized and practiced in this country.

13 United Arab Legal System in the United Arab Emirates Emirates

recognizes the rajm. There are several legal cases related to rajm in court, but few have actually ended up with rajm.

14 Yemen Yemen Criminal Law recognizes rajm for adulterers muhshan and homosexuals muhshan . There are several cases related to rajm but they are ended up with other kinds penalty. So far the execution of rajm has not been found.

The table above shows some important aspects, namely the general awareness of policy makers in Muslim countries who formulate Islamic criminal law as the state law that rajm is an inseparable part of Islamic law. This means that rajm could be on the agenda of every movement in the formalization of Islamic Syari`ah. Although in some places rajm is not yet implemented, but the law allowing rajm exists so that the government or the people can use it at any other times. The more so, if the Muslims have practiced the rajm in the name of tradition. that could be a strong justification for the state to implement it any time soon.

Pakistan, Sudan, Malaysia, and Brunei are some examples of the countries that have the formulation of the rules on rajm in their Criminal Law.

Pakistan: Whoever is guilty of zina liable to had shall, subject to the provisions of this Ordinance, -

(a) if he or she is a muhsan, be stoned to death at a public place; or Sudan:

The punishment for zina is stoning to death for muhshan. Kelantan Malaysia: 11. (1) Jika pesalah yang melakukan zina itu mohsan,

maka pesalah itu hendaklah dihukum dengan hukuman rejam, iaitu dilontar dengan batu yang sederhana besarnya sehingga mati. [If the offender of zina is muhshan, s/he should be punish by rajm, that is stoning using medium size of stone to death].

Brunei: a) jika dia mushan, direjam sehingga mati dengan disaksikan oleh sekumpulan orang Islam; [For married people, stone to death with the witness of a group of Muslim).

Zina Ordinance of Pakistan on the Mode of Execution to Death explains that rajm is started with the witnesses who have sworn that the convicted person has adultery pelting stones at the convict. While in the process, the convict may be shot. After the death of the convict, rajm and shooting must

be stopped. A law journal explains that during the rajm, men that would

be stoned are buried up to the waist, while women are buried deeper to prevent the stones to fall on their breasts. Women rarely ran away during the procession compared to men. This is why in Muslim countries fewer men stoned than women. If the convict escapes when stoned, he may be free. 168

168 Sanaz Alasti, Comparative Study of Stoning Punishment in the Religions of Islam and Judaism, Justice Policy Journal, Volume 4 – No. 1 –Spring 2007, p. 19

It is natural in an unequal relationship that it has a tendency to spread unfairness on those who are in a weak or weakened position. Similarly, the neutrality of the legal system in unequal gender relations tends to regard women as the weaker party. That is, women as sources of temptation that have major influence in the case of zina, qadzaf, and also abortion, so that women are in vulnerable position in the implementation qishās and hudūd. In addition, there is a tendency in law enforcement everywhere, especially in countries with weak law enforcement, symbolized like a knife, sharp downward but blunt upward. Rajm in practice is implemented to a weak community who have no access to justice. Among them are the poor and women.

Different opinion substantially occured whether rajm is categorized as part of Islamic law or not. 169 It has been ongoing debate since classical times, however, its implementation as part of the Islamic criminal law in modern countries cannot be prevented, even in the new Islamic criminal law applied in Brunei in 2014. This means that understanding rajm as central part of Islamic criminal law is much stronger than otherwise.