Refleksi : Kalau di tanah Arab Saudia pihak  penguasa  "keliru"  dengan hukum 
agama  sekalipun hukum ditulis dalam bahasa mereka, maka pertanyaannya 
bagaimana dengan di Indonesia?

Saturday 4 April 2009 (08 Rabi` al-Thani 1430)

      Lashing as a discretionary punishment
      Abdullah Al-Sharif | Al-Madinah
      I have written several times about lashing as a discretionary punishment; 
my hope has been that the courts would review this kind of ruling. Some 
sentences of lashings have distorted the image of our country both at home and 
abroad. It is a very brutal punishment, especially if the lashes are counted in 
the thousands. Many people here believe that our judges know only two 
discretionary punishments: lashing and imprisonment. Some judges even go beyond 
the permissible limit in cases of little importance.

      We read recently in our newspapers that a sentence of three years 
imprisonment and 1,500 lashes each for two young men who stole two lambs would 
be reviewed. The judge at the Bisha court who sentenced the men believed that 
the punishment was reasonable. He did not, however, cite the Shariah precedent 
for his ruling. The decision of the Court of Cassation to review the case 
should encourage him to reduce the punishment but instead he called for the 
deliberations of the court to be secret. The representatives for the two young 
men were not allowed to follow the proceedings so they would not know what was 
happening. Is not openness rather than secrecy the essence of justice? The 
newspapers also reported a verdict against a young man in Makkah who was 
sentenced to 15 years in prison and 40,000 lashes. His crime? "Making an 
illegal relationship with a woman and taking her to a remote place. The woman 
escaped from him but died when she was hit by a speeding car." I am not sure if 
these words were in the deliberations of the court or were written by the 
journalist who reported the story. The sentence of 40,000 lashes was too harsh, 
especially since the punishment for fornication by an unmarried man is only 100 
lashes. The report did not say if the man actually had sex with the woman or if 
she escaped before he even touched her. What was his responsibility in her 
death if she was hit by a car? The story also failed to say if she had agreed 
to go with him or whether he had deceived her into doing so.

      Whatever the truth, 40,000 lashes are too much. Where is the Shariah 
justification for this punishment? Or better still where are the legal 
precedents? Why do our judges insist on giving such a large number of lashes? I 
agree that the punishment of criminals should be a deterrent but it must have a 
legal justification.

      The discretionary punishments in our courts should be reviewed by all 
sections of the judiciary. In doing so, we should seek the help of legal 
experts in other Arab and Islamic countries. We should also find new mechanisms 
for the application of discretionary punishments in the various Islamic schools 
that we have ignored or forgotten. These mechanisms are very much present in 
our rich fiqh (jurisprudence) books and only need someone to look them up.

      Many of the discretionary rulings here have no base in Shariah and we 
should not exceed those limits when we apply them. We need more studies in this 
respect in order to ensure justice for all.

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