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Wednesday, September 2, 2009

ISLAMIC LAW AND CORRUPTION

A. Introduction

Al-Quran revealed by God to humankind in order to be living in saebagai guidelines task / mandate of the caliph of God on earth. Al-Quran as a perfect scripture scriptures earlier, was the era kulli salih wa li ate (appropriate for every age and place), and rahmatan lil 'alamin (mercy for all creatures). And the prophet Muhammad, the Sunnah is uswatun hasanah in every word, deed and prilakunya. Both are principal sources of Islamic teachings used by all Muslims, as hudan li al-nas.

Usul Fiqh Ulama divide the legal verses of the Qur'aan to the two forms, namely (a) the laws that are detailed (juz'iy), so the verses are by them called the ta'abbudi law (which can not be entered or the intervention of reason), and the laws that are global (kulli) which is the most content of the legal verses of the Qur'aan, the Sunnah in this case serves as an explanation, and the barrier pengkhusus of these verses. [1]

Islamic law in any society, anywhere, is intended to control, regulate, and as a means of public control, he is a ditegakan system, mainly to protect individual and community rights.

As a legal system based on the revelation (nass), Islamic law has a goal to achieve human kemaslatan in the world and the hereafter. Islamic law is essentially composed of two aspects of teaching in terms of source types, namely:

1. Aspects of Shariah, he was in the form of texts or revelations that truth is absolute, and

2. Aspects of jurisprudence, which has the form of Shariah intervened by human reason and thought that truth is relative. [2]

In the formulation of Islamic law has the primary goal to achieve and maintain the five main objectives (al-al-shar'iyya maqashid), namely: religion, soul, mind, honor or lineage, and property. These five key points must be realized earlier and maintained for the realization of human benefit, which was achieved with the so-called, good in the world and good in the Hereafter.

Thus, any acts or actions that could threaten the safety of any of the five main thing teersebut, it should be considered a crime (offense) is prohibited, and to protect and preserve these five key points and benefit mankind in general, Islam establishes and confirms a number of regulations, either in the form of commands and prohibitions, and in some cases these rules is accompanied by the threat of earthly punishment or sanctions and / or ukhrawi, if rules are violated.

Afterlife punishment is a reward or return for a deviant act human for living in the world. Execution is to be included into the torment of hell. Inside is a variation of punishment tailored to the type and quality of sin and guilt. Earthly punishment is a punishment that was decided by the judge and the sentence carried out in the world. [3]

Earthly punishment there are two kinds, namely first that is based on the texts of Qisas, Diyat and had. And the second is not based on the texts, but the judge handed pa wisdom to realize the benefit of mankind ta'zir the form and submitted to the consideration of its judges.

Looking at the five main points above, then the crime can be categorized into five major groups, namely crimes against religion, crimes against human life, a crime against reason, a crime against honor and descendants, as well as crimes against property benda.4 [4] discussion of the problems this crime, which in most literature is known as fiqh al-jinayah or commonly known as the Islamic Criminal Law.

Criminal law is the law that are public, meaning it is the law governing the violations and crimes against the public interest, either public (state) as well as man's own interests, such as mental, or physical body, etc.. In practice the Islamic Penal Code provides criminal sanctions for any violations or crimes that the public nature, divided into three main categories of sanctions in accordance with the form of crime, ie criminal sanctions hudud, qishashdiyat criminal sanctions, and criminal sanctions ta'zir.

Pembahsan in the books of classical jurisprudence, the problem 'uqubah was always integrated with other forms of jarimah (crime), so impressed the forms of criminal sanction in Islam has a psychological impact of each upon the perpetrator of certain crimes. In general, the basis for discussion it is a form of crime. In fact, form their own criminal not absolutely dependent on other forms of criminal acts (the offense), and reflection on the effects or the psychological impact itself can be changed according to the times, so that could have been one of the criminal is no longer effective as a form of criminal.

Of the three categories of criminal sanctions, which became a frequent problem and the public spotlight, is a criminal sanction of the type hudud, and qishashdiyat. This category of criminal sanctions that are nushushiyah, because it is a criminal sanction expressly defined in the texts of al-Quran and al-Sunnah. Criminal sanctions is, regarded as something that should not be changed, if the requirements have been met or proof. The ta'zir criminal sanctions, it is a kind of punishment is not determined exactly by the texts, both by al-Quran as well as by al-Sunna.

Thus, the authority to determine this ta'zir criminal sanctions, are in the hands of local authorities (ulil amr), so that any type of punishment varied according to local circumstances. Ta'zir a legal order that allows the Islamic penal code to conform to the requirements according perkembanghan space and time.

B, Sanction / Penalty Corruption

Islam as a value system plays an important role to provide enlightenment values, moral awareness, improved mental or moral improvement, with good potential use of each indivisu, namely conscience. Furthermore Islam is not only a commitment by individual pensalehan efforts, but also social pensalehan. In this social pensalehan, Islam developed a passion for change kemungkaran, spirit remind each other, and advise each other. Develop a true Islamic spirit of social control.

In another form, Islam also developed a form of strict legislation, administrative supervision system danb managerial ketat.Oleh therefore to provide and establish penalties for the perpetrators of corruption, should not indiscriminately, whether he was an officer or was he the most. The purpose of punishment is to give a sense of deterrence to stop the evil he has done, so that can be created rasadamai, and harmony in society [5]

Corruption is an immoral act which is prohibited by syara ', although the texts do not explain or kifaratnya had. But the perpetrators of corruption ta'zir penalties for those kemaksiatn. Immoral acts have some similarities, among others, betraying promises, deception, perjury, usury, etc. dining treasures. So the act falls into an important jarimah ta'zir.

This is in line with the Prophet the following Hadith:

عن جابر رضى الله عنه عن النبى صلى الله عليه وسلم قال: ليس على خائن ولا منتهب ولا مختلس قطع) رواه احمد والترمذى (

It means: "Narrated by Jabir RA of the prophet Muhammad, the Prophet said: There is no (penalty) cutting off hands for traitors, usurpers and aggressors / pickpockets. (HR.Ahmad and Tirmizy) [6].

As a basic rule, Islam allows for ta'zir condemned immoral acts, pabila dikendaki by the public interest, meaning actions and circumstances that can be sentenced to not be determined ta'zir previous sentence, because it depends on the nature particular, and pabila these traits does not exist, such acts are no longer prohibited and not subject to punishment. This trait is detrimental to the interests and public order. And if the act has been proved in court before the judge should not set him free, but must drop the appropriate punishment for him ta'zir.

Ta'zir sentencing for the interests and public order, the deed refers to the Prophet Muhammad, where he had detained a man accused of stealing a camel, after known / proven he did not steal it, then the Messenger of Allah set him free. [7]

Islamic law does not specify the various penalties for jarimah ta'zir, but only mentions a set of penalties, starting from the punishment as light-light, such as advice, threats, until the punishment seberatberatnya. [8]

Full application submitted to the judge (Lord), with the authority he has, he can set an appropriate punishment with the crime levels and state actors, [9] by observing the general provisions of Islam in the sentence, namely:

1. Sentencing objectives, namely to keep and maintain the public interest

2. Effectiveness of punishment in the face of corruption without degrading the perpetrator of humanitarian

3. Commensurate with the crime, so the terrace fair

4. Without playing favorites, all equal before the law keudukannya. [10]

A judge may consider and analyze the heavy and light acts committed by the perpetrators of corruption. Crimes that have been defined by the textual legal sanctions, a judge has no choice but to implement it. Although legal sanctions for the perpetrators of corruption are not mentioned explicitly in the texts, but the seizure and pengkhiatan can diqiyaskan as embezzlement and corruption.

1. Understanding and Ta'zir Types

Ta'zir is the punishment of convicts who are not specified explicitly in the form of sanction in the texts. The penalty was imposed to give lessons to terepidana that he did not repeat the crime he had committed .. So the kind of sentence called 'uqubah mukhayyarah (punishment option).

Jarimah the ta'zir penalties there are two types, namely:

1. Jarimah had imposed penalties and Qisas, if not met one rukunnya, such as the theft jarimah sentenced ta'zir for man who stole items not stored properly, or for people who are not mencurti goods reach nishab theft. In jarimah punished adultery intercourse ta'zir for a hole in addition to genital (oral sex). Jarimah qadzaf on ta'zir punished for that to kissing qadzaf not charged with adultery.
2. Jarimah which had no penalties and Qisas, such as jarimah betrayal of a mandate that has been given, jarimah arson, bribery, etc..

2. Application of Executors Ta'zir For Corruption

Ta'zir penalty can be applied to the perpetrators of corruption. The question is, why corruption including the jarimah ta'zir? We know that corruption is included in jarimah one that is not mentioned by the texts clearly, therefore he does not belong to the type of punishment is jarimah had and Qisas. Corruption as ghasab law, although the property had spent the perpetrator of corruption over the stolen property nishab who cut his sentence. Can not be equated with the punishment of cutting off hands of thieves, this is because it includes syubhat. However, comparable or diqiyaskan the punishment of a thief stealing money stolen mengembalian.

Jarimah corruption in the three elements that can be taken into consideration for the judge in determining the punishment of:

First: deprivation of property of others.

Second: betrayal or abuse of authority, and

Third: cooperation, or fix the crime.

These three elements have been clearly prohibited in Islamic law. Furthermore depending on the wisdom of common sense, confidence and sense of justice that is based on the judge's sense of justice to determine the punishment for the perpetrators of corruption. Although a judge was given the freedom to wear ta'zir, but in determining the penalty, a judge should consider the general provision imposing sanctions on the Islamic Criminal Law:

1. The punishment is only given to people who do jarimah, should not people who do not do evil punished

2. The existence of intent, a person convicted of a crime when there is a deliberate element to do evil, there is no deliberate means due to negligence, mistake, forget, or wrong. However due to negligence, wrong, wrong remain forgotten or given a penalty, though not a punishment for crime, but for the benefit of nature mendididik.

3. The penalty will be imposed only if the crime is convinced he has done

4. Cautious in menenetukan punishment, let not punished and handed it over to God if it is not enough evidence. [11]

In general, corruption in the Islamic view is a criminal act contrary to the moral and religious ethics. Corrupt behavior can diminish the reward of jihad / martyrdom. In a story narrated that the Prophet emphasized that due to corruption someone who should be experts heaven (as Shahid), instead go to hell because culasnya behavior. When a friend died in peretempuran Khaibar, a lot of friends and flattering praise as a hero who died a martyr, so he'll be an expert heaven. But the Prophet brushed it off by saying "no, a turban which he stole from the war booty of Khaibar would burn his body in hell" [12]

Ibn Taymiyyah mentioned several models jarimah ta'zir punishment has ever exemplified by the Prophet and his companions: "Limit ta'zir minimum penalties can not be determined, but the point is all the punishment painful for humans, can be words, actions or deeds, and exiled. Sometimes a person punished ta'zir by giving advice or reprimand, menjelekakannya and humiliate it.

Sometimes a person punished by ta'zir away with leaving the country so that he repent. As the prophet had expelled three people who turn away, they are Ka'b bin Malik, Maroroh bin Rabi ', and Hilal bin Umaiyyah. They turned away from the Prophet in Tabuk war. So the Prophet ordered to isolate them, then the Prophet forgave them after getting off the verses of the Qur'aan about acceptance of their repentance. And sometimes ta'zir berbenuk punishment dismissal from military service for soldiers who had fled from the battlefield, because running away from war medasn a great sin. Similarly, if the officials did so he was exiled irregularities ". [13]

Description is clear to us that the punishment was jarimah ta'zir ranged from giving a reprimand to the imprisonment and exile.

Referring to the experience of the Prophet and his companions on the ta'zir punishment to perpetrators of corruption is that it can be a choice or a combination of various types of 'uqubah follows:

1) Crime of the soul (al-uqubah al-nafsiyah), the penalty associated with the psychological one, such as warnings and threats.

2) Crime on the body (al-'uqubah al-badaniyyah), the punishment imposed on the human body, such as capital punishment, punishment flagellation (volumes) and his sentence cut.

3) Crime of the property (al-'uqubah al-maliyah), the penalty imposed on one property, such as Diyat, fines and confiscation.

4) Criminal on independence, the penalty imposed on the freedom of man, such as the punishment of exile (al-hasb) or prison (al-sijn).

About this issue I mentioned ta'zir clearer and more vivid in my group of papers specifically talking about jarimah ta'zir.

C. Closing

One of the biggest problems this nation is the culture of corruption that have been legalized by the public, when dealing with corruption cases either at the root level in the bureaucratic structure of government or the work being cultivated, the community tends to silence even participate in it.

It is time for all the elements people hand in hand disseminating anti-corruption and anti-abuse of authority that has led this country and get dropped from the curse of Allah SWT.

As one element of society, the author can only pray and make every effort possible so that large ideals to convert the laws in this country can be realized at some point. Amin Yes rabbal 'Alamin.

REFERENCES

Aaudah, Abdul Qadir, al-Tasyri 'al-Jinai al-Islamy, Beirut: al-Risala Muassasah, Volume I, 1992.

A. Fathi Bahansi, al-Mas'uliyah al-Jinaiyyah al-Islamy, Beirut: Dar al-Shuruq, 1984.

A. Hanafi, the principles of Islamic Criminal Law, Jakarta: Bulan Bintang, 1993.

Arifin, Jaenal and M. Salim Arskal GP, Criminal Islam in Indonesia: Opportunities, Prospects, and Challenges, Jakarta: Pustaka Firdaus, 2001.

Ismail Muhammad Shah, Philosophy of Islamic Law, Jakarta: Bumi Aksara, 1992.

Muhammad Shah, Ismail, et al, Philosophy of Islamic Law, Jakarta: Bumi Aksara, 1992.

Munawar Fuad Noeh, Islam and the Moral Anti-Corruption Movement, Jakarta: 1997 Judge Zikrul.

Muhammad ibn Ismail al-Kahlani, Subul al-Salam, jili 4, Bandung: Dahlan, t.th.

Nasir S. Cape, "Jarimah and 'Side Two Uqubah is Ta'zir". Pulpit Religion and Culture, III, 1985.

Umam, Khairul, Usul Jurisprudence I, Bandung: Pustaka Setia, 1998.

Wahab Afif, Criminal Law of Islam, Jakarta: Yayasan Ulumul Quran, 1988.


[1] Khairul Umam, Usul Jurisprudence, I, (Jakarta, Pustaka Setia, 1998), p. 55

[2] Jaenal Arifin and M. Salim Arskal GP, Criminal Islam in Indonesia: Opportunities, Prospects, and Challenges, (Jakarta, Pustaka Firdaus, 2001), h.57

[3] Ismail Muhammad Shah et al, Philosophy of Islamic Law, (Jakarta, Earth script, 1992), h.227

[4] Ibid., P. 107

[5] Munawar Fuad Noeh, Islam and the Moral Movement Against Corruption, (Jakarta, Zikrul Judge, 1997),

h.154-155

[6] Muhammad bin Ismail al-Kahlani, Subul al-Salam, jili 4, (Bandung, dahlan, t.th.), h.22

[7] A. Hanafi, the principles of Islamic Criminal Law, (Jakarta, Bulan Bintang, 1993), h.69

[8] Nasir S. Cape, "Jarimah and 'Side Two Uqubah is Ta'zir". Pulpit Religion and Culture, III, 1985, h.13

[9] Aaudah Abdul Qadir, al-Tasyri 'al-Jinai al-Islamy, (Beirut, Muassasah al-Risala, 1992), vol 1, p. 66

[10] Wahab Afif, Islamic Criminal Law, Banten, Ulumul Quran Foundation, 1988), p. 214

[11] Ismail Muhammad Shah, Philosophy of Islamic Law, (Jakarta, Earth script, 1992), h.87

[12] Munawar Fuad Noeh, op.cit., H.90-91

[13] A. Fathi Bahansi, al-Mas'uliyah al-Jinaiyyah al-Islamy, (Beirut, Dar al-Shuruq, 1984), h.23

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