These characters, such as collectivity, systematic, social and political potential conflicts, and the consequences of the harm they cause, are very close to the ḥirābah crimes. Abou el-Fadl notes that there are at least six opinions about the historical setting of the verse. Based on some of the thoughts above, it is reasonable for the researchers to recommend expanding the understanding of ḥirābah.
Khaled Abou El Fadl is one of the world's leading authorities on Islamic law and Islam and a distinguished scholar in the field of human rights. Importantly, the language of the verse lends itself to use in the political realm and could easily be applied to rebellion or rebellion.30 The Qur'an repeatedly condemns those who cause corruption on earth. 30 Abdullah Yusuf ’Ali, The Meaning of the Holy Qur’an (Beltsville, MD: Amana Publications, 1995); Khaled Abou El-Fadl, Rebellion and Violence in Islamic Law (Cambridge: Cambridge University Press, 2001).
Since it is immediately followed by 'to do mischief in land-fasād fi'l-ard', the two phrases have been read together to give a clearer understanding of the verse. This was heralded by a fatwa on the exact meaning of the crime of banditry (ḥirābah).
New Formulation of Ḥirābah Crimes 43 1. Terrorism as Ḥirābah Crimes
Rape (al-Ightisāb) as Ḥirābah Crimes
When the case was presented to the court, some argued that the case was not part of the crime of ḥirābah because ḥirābah was only related to material (property). In response to this argument, Ibn 'Arabi stated: "Isn't rape worse than robbery?"55 Ibn' explained his argument. Clearly, according to ibn 'Arabi, honor is more valuable than wealth and therefore deserves greater protection from the law.
Other jurists such as Ibn Hazm, Ismail and Mujahid also agreed that rape should be categorized as ḥirābah. Ibn Hazm stated that "the muharib is a person who frightens others, also kills, possesses or rapes". rape or damage their plants.” Even some Shafi'i and Malikiyah jurists also agree that rape is considered ḥirābah. They argue that disturbing women openly is a crime of ḥirābah.57 Meanwhile, according to the Dzahiriyah, the person who commits ḥirābah (muḥārib) is anyone who threatens passersby and frightens road users and kills people, takes possession or destroys farji (adultery). .
As ḥirābah, only sexual relations carried out with violence, the use of weapons and drugs or any object that can disable consciousness can be categorized.58. Thus, rape in Islamic criminal law is closer to the understanding of the crime of ḥirābah regulated in Qur'an 5:33, rather than the crime of adultery. 55 Abū Bakr Muḥammad bin ’Abdullāh al-Ma’rūf bi Ibn ‘Arabī, al-Aḥkām al-Qur’ān, vol.
In Pakistan, one of the Islamic countries, the issue of rape has been approached from three different perspectives: First, traditional scholars insist that rape is a form of zina and can only be proven by confession or the testimony of four witnesses according to a prescribed standard; Second, Mawlana Islahi developed a broader doctrine of ḥirābah that includes all forms of fasād (impropriety), including rape, and also argued that circumstantial evidence can also prove a hadd crime; Thirdly, some traditional scholars who advocate the concept of "conflation" (talfiq) or mixing the opinions of different schools of jurisprudence have tried to make a kind of compromise between these diametrically opposed views by suggesting that even if the rape covered by the law is zina, it would could be proved on the basis of circumstantial evidence. 61 But the Federal Sharia Court in Rashida Patel concluded that rape is a form of ḥirābah, not zina. Influenced by the theory of Islahi, Fida Muhammad Khan J observed: “Zina bi 'l-jabr is different from other cases of zina and in our opinion it is a serious type of fasād fi 'l-ard (creating harm and disorder in the land) and ḥirābah. Therefore, the standard of evidence required to prove this crime is ḥirābah, not zina.”62.
61 Shih Mushtaq Ahmad, “The Crime of Rape and the Hanafi Doctrine of Siyasah”, Pakistan Journal of Criminology, vëll.
Smuggling and Trafficking of Drugs as Ḥirābah Crimes Smuggling and trafficking of drugs is a crime that is very dangerous
Malaysia is another country that has implemented a mandatory death penalty for the crime of drug smuggling and trafficking, which appears to be consistent with the law of ḥirabah under Sharia law.65. Another problem with classical Islamic law according to an-Naim is the existence of legal discrimination or non-application of the principle of equality before the law, such as diyaat (penalties) for the act of killing a woman according to classical Muslim scholars. estimated only half of the diet killing men boys.66. Abu Hanifa and his disciple al-Shaybani hold that the perpetrators of Hirabah must be male, so if there is a female member in a ḥirabah group, then the female member of the ḥirabah is not subject to punishment.
The group that embraces the view of all perpetrators as the main perpetrators in the crimes of Hirabah, believes that all the elements of the crimes of Hirabah exist perfectly in every perpetrator, whoever they may be and whatever their duties and contributions. And conversely, the opinion that there is only one main offender, believes that everyone involved in the crime of Hirabah represents himself, so it is only related to certain elements of the crime. This condition is a consequence of the different perspectives of criminal responsibility as explained in the second implication.
Similarly, when it is not treated as an ishtirāk, the penal sentence ḥirābah is used in the form of one sentence of the same type, namely ḥad ḥirābah. Categorizing ḥirābah perpetrators into one category, namely as principal perpetrators, appears to provide greater legal certainty regarding liability for the crime of ḥirābah. However, in the case of ḥirābah, the existence of an intention to engage in ḥirābah is the only determining factor that a person deserves to be categorized as a major actor, regardless of his true position and contribution.
One of the differences between the hiraba verse and other hudud crime verses is the clear recognition of the institution of repentance as an act that has significant legal implications for the perpetrators of the hiraba. That is, if the perpetrators of hirabah choose to repent before they are caught, then the possibility of being threatened with the punishment of Had will be removed (forgiven).75. For this reason, the rules of the modern nation state require that all penal provisions, before being enacted, must first go through the modern (legislatively proven) procedures of legislation to obtain prior approval.
Not even just ḥirābah, but also in most of the concept of punishment in Islamic penal law. Articles 1(i) and 16(i) of the CAT provide that no one shall be subjected to torture or to cruel, inhuman or degrading punishment and that states must take measures to prevent officials from committing torture or applying such punishment.77 . The same applies to certain forms of execution of the death penalty, such as stoning and crucifixion (at least if the latter punishment is understood as serving the convicted person for life, as is the case in Iran), execution in the same way the offender murdered his victim (listed in the Sudanese Penal Code and some Northern Nigerian Sharia Penal Codes), or execution by one of the victim's heirs (which the court may allow under the Iranian Penal Code).79 As if agreeing with the opinion of critics of Islamic law, An-Na'im argues that discrimination, unequal distribution of rights, curtailment of freedom of conscience and belief, and denial of popular sovereignty have crept in.
Concluding Remarks
However, the prevailing interpretation of cruel, inhuman or degrading punishment is that it includes all forms of corporal punishment.81. Many legal products of human rights institutions tend to be incompatible with Islam, especially regarding the concept of punishment for the perpetrators of ḥirābah and for the perpetrators of crime in general. Corporal punishment in Islam is still considered necessary because it relates to the deterrent effect and its effectiveness, while the human rights activists consider it a cruel, inhuman and degrading punishment.
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