The Main Agenda

B. The Main Agenda

The application of Islamic criminal law, including hudūd, should not be separated from the general mission of Islam, that is, to realize the just and

184 Abdul Wahhab Khallaf, Ilmu Ushul al-Fiqh,pp. 32-33.

prosperous order of life. Strong political motivation accompanied by weak philosophical foundation tends to make the orientation of the application of Islamic criminal law become a punishing, torturing, and avenging machine with no fair procedures. The purpose of qishās is no longer to maintain life, but to kill a killer so that the orientation of the ruler is not to create a system of life safe for all members of society in which people are not afraid to qishās if they kill someone and they are also not worried to be killed because of having different opinion from their authorities, not to be forced to kill the perpetrator because of being victim of continoues domestic violence , not to

be forced to kill for being raped, or for being treated unfairly. The verdict of qishās in Saudi Arabia inflicts many Indonesian workers,

including women. A case which disturbs a sense of justice happenned to Tuti Tursilawati, a female migrant worker who killed her boss due to repeated sexual harassment.

One of the Indonesian workers who is subject to beheading in Saudi Arabia is Tuti Tursilawati. A TKW (Tenaga Kerja Wanita; woman worker) from Majalengka, West Java, was now in prison in the city of Ta’if, Saudi Arabia. She was jailed for killing her employer on May 11, 2010. The action came not without reason. The man was killed with a wooden flail for repeatedly raping her. After hitting her employer, Tuti fled with the wages of 31,500 Arabian Riyal and a wristwatch. On the way fleeing, she met a man who promised to help her. However, she was even locked up in a room. Here, Tuti was raped by nine men. 185

Qishās-hudūd punishment for Muslims who change their religion from Islam in a repressive and authoritarian rule may in practice spark from differences in religious views one citizen has with the authorities. This citizen is susceptible to be accused as someone dangerous with subversive power.

185 Derita Tuti TKI yang Divonis Qishās, http://sumeksminggu.com/index.php?option=com_ content&view=article&id=618:derita-tuti-tki-yang-divonis-Qishās &catid=921:hot-news, accesed 28 December 2014.

Rulers can use qishās and riddah or even bughat (subversion) to silence their political opponents in the name of religion. 186

In an ideal world, the application of the punishment of hand amputation for thieves can be exempted from the obligation of the authorities if only they can realize the order of a prosperous life in which people are peaceful not because they are afraid their hand being cut off for stealing or robbing, but because they can meet all the needs of life easily and the employment is abundant, distributive justice either through a tax or zakat is going well, financial institutions of the state are not only good at collecting funds but also smart in distributing them with the correct methods and the right target, the kinship between the rich and the poor is nurtured properly so that rich people have a high concern on donation, charity, scholarship, and others, so that no one is forced to steal in order to meet their basic needs of life.

Similarly, criminal law for adultery can also be exempted from the obligation of the authorities when the system of peaceful, loving and caring marriage and family life is realized. One would not commit adultery not because of fear of being whipped or even stoned, but mainly because there is a way to satisfy their sexual needs with dignity. There are systems that prevent a person from being victims of human trafficking, and prevent any person from making money on others by prostituting. People can marry at the proper age, when they are mentally ready to take the role as husband and wife and as parents, they choose a husband or wife on their willingness, and they get access to a good income because employment is widespread. There is a mating system that can protect the rights of both husband-wife and also the parents with their children. There is a good system of documenting so that the status of marriage or divorce can be verified easily.

The case of Shahida and Sarwar in Pakistan exemplifies the poor administration system that led married couples sentenced to stoning:

186 Qishās that befell on Mahmud Muhammad Taha in Sudan can be the case that reflects this. He is the founder and leader of the Republican Brothers. At first he fought against the British and became a staunch supporter to Numeiry. But when Numeiry implemented

a reckless Islamisation, he became his main critic, and Numeiry captured, prosecuted, and decapitated Taha. See Taufik and Samsu, Political Syari`ah, p. 117.

Shahida is a young girl who was divorced according to Islamic law, but the husband who divorced her did not submit the letter of divorce to the court as required by law in Pakistan. Shahida, not knowing if the letter has not been handed over to the court, married another man, namely Sarwar. But her ex- husband, since no woman offers him a marriage, wants Shahida back. When

he finds out that his ex-wife has been married to Sarwar, he reports her to the court which eventually arrests Shahida. Since the letter of divorce is not in the court, and Shahida is living under the same roof with another man, she is considered of committing adultery. Shahida and Sarwar are being stoned. 187

The cases mentioned above show that, in practice, a crime to be convicted with qishās or hudūd, is completely in the hands of the authorities to determine. According to Ziauddin Sardar, a ban on criticizing the law of God because control or justice belongs to God alone is a simplistic argument which leads into neat totalitarian formulation. When an authority plays a role as spiritual leader and at the same time a political leader, a legislator as well as an executor, then he is really an absolute ruler. 188 Syari`ah law with political motivation is often followed by the political main agenda. Maslahat of the people as the primary mission of Islam is not present in the application of qishās and hudūd in various Muslim countries, especially ones that still struggles with problems of poverty.

Application of Islamic Law in various contexts show that the main agenda or priorities of Islamic Syari`ah through hudūd is not for the benefit of the people in general nor in particular for the benefit of vulnerable groups, but no other than to give judgment. Agenda to implementation of hudūd this way is contrary to the purpose of the Syari`ah ( Maqashidasy-Syari`ah), which is the public good ( 189 al-Mashalih al-ammah). Al-Ghazali mentions five terms as the goals of Islamic Law, namely the maintenance of religion, life, reason, lineage and property. 190

187 Asghar, Islam dan Teologi Pembebasan, p. 257. 188 Ziauddin Sardar, Ngaji Qur’an di Zaman Edan (Jakarta: Serambi, 2014), pp. 417-418. 189 Jaasir, Fiqh al-Maqashid, p. 57 .

190 Al-Ghazali, Al-Mustashfa, vol. 1, pp. 286-287.

Application of stoning on Shahida and Sarwar mentioned above contains total violations to those five types of maintenance: violation to the maintenance of religion because they both have carried out the procedure of marriage according to religious teachings, yet they are being accused of committing adultery, to maintenance of life for being stoned to death, to maintenance of reason because the court ignores the arguments and defense, to the maintenance of lineage for the sentence has eliminated their right to legally reproduce through marriage, and to maintenance of property because legal procedures and executions by stoning have cost a fortune in vain. Of course, instead of putting weak society in priority for realizing the benefit of the people, this kind of application of hudūd drags them into the position that is very difficult and vulnerable to injustice.