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Comparing the Codes: Crimes and punishments

Reflecting the classic distinction between crimes and punishments, both the NII and MMI codes offer a presentation of qisas, diya, ta‘zir, and hudud. It is indicative of the respective socio-political context that the NII code focuses mostly on killings and banditism, and the MMI’s on sexual offences.

In the NII text qisas is obligatory for the crime of killing a person that the law does not allow to be killed, and for the wounding that impairs reasoning capabilities (quoting Qur’an 5:45). Diya, instead, could be requested if the heirs of the victim were to give forgiveness, or in case of non-impairing wounding. Ta‘zir is prescribed for the killing of a person who it was lawful to kill, but who was killed before the imam or his representatives had passed the sentence.

Shafi’i jurisprudence prohibited applying qisas for the killing of a dhimmi, and such offence is punished in the NII code by light compensation (diya mukhaffafah). Qisas, however, is also forbidden in this code on the father of the victim, a practice that is otherwise usually allowed by the Shafi’i and Maliki schools.[1] Another discrep?ancy is in the distinction applied to ‘intentional’, ‘unintentional’, and ‘apparently intentional’ killings, as mainstream Shafi’i legal thought does not require the intention to kill for qisas.66 According to the NII text ‘light compensation’ was permitted for intentional killing when apologies were offered to - and accepted by - the relatives of the victims, and the same punishment is prescribed for unintentional killing - either 100 camels or 16,000 golden dinar. The amputation of a single limb equalled 50 camels in compensation, two body-parts 100 camels, and a wound on the head 5 camels. In the MMI code these internal distinctions in compensation have disappeared, replaced instead by differentiations between compensation for a male Muslim victim, a female Muslim, and a kafir, the diya is fixed at 100 camels, 1,000 golden dinar, or 12,000 silver dirham for the life of a Muslim male or the loss of two limbs, while it is half for a Muslim woman, and the sum is further halved if the victim is a non-Muslim (and no differentiation is made between a dhimmi and a kafir).

Hudud offences are those crimes that break the limits (Arabic hadd, hudud) of what God has allowed. Tradition regards these offences as having fixed, unchangeable penalties, as these are God’s own right. Illicit sexual intercourse (zina), false accusation of zina’ (qadhf), drinking alcohol, theft and robbery, and apostasy (irtidad, murtad) are all mentioned and discussed in the two texts. Both prescribe stoning for a married adulterer, although the NII code also includes the possibility of heavy compensation to be made in the case of the married adulterer, and 100 lashes (or banishment) in punishment for the unmarried one.[2] [3] The NII sanctions discretional punishment for bestiality and sodomy, with the latter reflecting the Hanafi school rather than the Shafi’i,[4] whilst the MMI assimilates sodomy to zina' and changes the punishment for bestiality from ta'zir in 2002 to stoning in 2005. It should not surprise that the MMI code includes several additional articles on unacceptable sexual practices when compared with Kartosuwiryo’s text. The inclusion of articles on lesbianism, necrophilia, and incest, as MMI’s efforts to pass an Islamic criminal code, cannot be discerned from the general attempt of Islamist groups to impose

Muslim standards of moral conduct, as also evidenced by the antipornography bill that was passed in 2009. For zina’ accusations, the Hukum pidana required four male witnesses who had witnessed the sexual act (kelihatan masuk dan keluarnya) for the specific intention of testifying in court. The MMI code, on the other hand, requires no such burden of proof; in both codes he who accuses without satisfying the requirements is to be punished with 80 lashes.

The NII code punishes the drinking of alcohol with 40 lashes according to Shafi’i tradition, but the MMI incorporates Caliph Umar Ibn al-Khattab’s decree that the lashes number up to 80, thus stipulating a punishment between 40 and 80 lashes; plus, in 2005, the addition of death penalty for he who is convicted for a fourth time.[5] An interesting deviation from traditionally accepted jurisprudence, and an indication that this NII code was adapted to local understandings, is an article specifying that he who drank arak or other kinds of alcohol as a medical treatment and under the suggestion of a doctor should be exempted from the punishment. It should also be noted that neither the NII nor the MMI codes prohibit gambling.

The MMI code bears witness to the deep transformations in Islamic practice since the religious revival of the 1980s, as the evidence of cultural adaptation present in Kartosuwiryo’s code, including the categorization of wandu and the permission to drink alcohol whenever prescribed by a doctor, have disappeared.

In the NII code, the article on robbery and theft (here described as baigal dan pencurian) prescribed execution by crucifixion for he who accidentally kills during a robbery, simple death for he who kills without seizing the goods, amputation of the right hand and left foot for he who robs without shedding blood, and ta‘zir for he who scares travellers without causing any damage. Amputation was also the punishment for a person who stole up to U of a dinar, a prescription that reflects Shafi’i tradition. Finally, he who killed while defending himself (daf’ul-sial), his belongings, or his wife’s honour was exempted from punishment. In the NII code, as well as in the MMI ones, apostasy is treated in full accordance with, and acknowledgement of, books offiqh (sebagaimana jang termaktub dalam kitab2 Fiqih): in the event that the order to repent went unheard, the apostate was to be punished with death.[6]

Comparing the treatment of hudud crimes and punishments it is evident that between 2002 and 2005 the MMI had further radicalized its position: the act of theft (sariqah) is punished in 2002

with the amputation of the right hand and left foot for the first and second offences respectively, and with ‘beating with a piece of wood or imprisonment for a term determined by the judge to give the convicted the opportunity to repent to God’ for the third and subsequent ones. In 2005, however, the last clause is replaced with three more, specifying the amputation of left hand and right foot for the third and fourth offences, and eventually death for the fifthtime offender. In Kartosuwiryo’s code this latter clause prescribes banishment, and the offence itself is referred to as pencurian.71 The second hudud crime taken into consideration by the MMI is hirabah, which is explained as civil disturbance and seems to correspond with the Nil’s baigal in its description of both offence and punishment.72

Although scattered throughout the text, the NII code offers detailed regulations to meet most needs of society, focussing on those particularly relevant for a society in a state of war. Muslim fighters were allowed to withdraw when outnumbered, as preventing damage should take precedence over the acquisition of benefits (quoting Q 8:1, 15). When fighting the infidels, Muslims could retreat if outnumbered 10 to 1 or 2 to 1 by the enemy (quoting Q 8:65-66). Those who withdrew from the battlefield under any other circumstance were to be banished (quoting Q 8:16). The last article prescribed that the corpses of infidel enemies (as well as apostates) were to be buried for hygienic reasons; those executed whilst pronouncing the shahada were to be considered Muslims, and thus attended to as prescribed. Finally, Muslims who had died in battle or within 24 hours of being wounded were to be considered shahid dunia akhirat, or martyrs.

  • [1] J. Schacht, Kisas, EI2.
  • [2] J. Schacht, Katl, EI2.
  • [3] ‘Proposal for a Criminal Code’, point no. 17; Fauzan Al-Anshari, KUHP syariah, pointno. 16; Qanun asasy Negara Islam Indonesia, AABRI DI no. 9, point no. 12.1. Another discrepancy between Pinardi’s copy and AABRI DI no. 9 regards the crime of zina’.Unless it was a typo, in Pinardi (who, in my opinion, uses a later text) the code appears to dealwith the crime of adultery in a more progressive way, as article 18 does not suggest stoning,banishment, or imprisonment as forms of punishments.
  • [4] R. Peters, Zina, EI2.
  • [5] ‘Proposal for a Criminal Code’, point no. 27; Fauzan Al-Anshari, KUHPsyariah, point no. 13.
  • [6] ‘Proposal for a Criminal Code’, point no. 28; Fauzan Al-Anshari, KUHP syariah, point no. 10.
 
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