Vous êtes sur la page 1sur 15

PAPER

CRIMINAL RESPONSIBILITY IN ISLAMIC LAW

Arranged to fulfill the task


Courses: Islamic Criminal Law
Lecturer: Drs. Mohamad Solek, M.A.

Arranged by:

Zuyyina Alfi Hasanah (1802046025)

Muhammad Firdaus Nuzula (1802046026)

Reza Sartika Dewi (1802046027)

FACULTY OF SHARIA AND LAW

ISLAMIC STATE UNIVERSITY OF WALISONGO SEMARANG

2019
CHAPTER I

PRELIMINARY

A. Background
The system of criminal liability in national criminal law to come to apply the
principle of no criminal without errors is one of the basic fundamentals that need to
be defined explicitly as a couple basic legality. The second principle is not a rigid
requirement is seen and is absolute. Therefore give the possibility in certain things to
apply the principle of strict liability, liability, erfolgshaftung, a type error or error,
pardon, culpa in rechterlijk causa and criminal liability-related issues the subject of a
criminal offence. Seen from a comparison of the CRIMINAL CODE, the basic
principle of fault or culpabilitas generally recognized as a general principle. The
formulation of this principle is usually visible in the formulation regarding criminal
liability, especially related to the issue of wilful and forgetfulness.
In the sense of a criminal offence does not include criminal liability. Criminal act
only refers to the prohibited and diancamnya of works with a criminal. But the person
who did the crime is not necessarily a criminal sentenced as diancamkan, it depends
on "whether in doing this person have an error", which refers to the principle of
accountability in the law criminal: "there are convicted if no errors (geen straf
without schuld; actus non facit reum nisi mens sir rea) ".

B. Formulation of the problem


1. What is the accountability of the Islamic criminal law and what are
essentially?
2. What are the factors of criminal liability and the factors which affected it?
3. What is direct, for deeds, and terms in Islamic criminal law?
4. How vanishing the Islamic criminal liability?

1
CHAPTER II

DISCUSSION

A. The meaning and principles of Criminal Liability in the law of Islam


` In Islamic law, criminal liability should the man responsible for the
consequences of the unlawful deeds that he did when he wanted have freedom
(not forced) and know the meaning and the result of such a feat. Thus, a person
who does an act that is prohibited, but it is not intended, for example, people are
not forced to account for such deeds are required. Similarly, a person who does
an act of haram and he indeed asks for it, but he did not understand the meaning
of such a feat, like children or lunatics, then he's not responsible for his actions.
Thus, criminal liability in the law of Islam consists of three basic:
1. Unlawful Deeds committed by perpetrators
2. The perpetrators chose option (not forced), and
3. The perpetrator has knowledge (idrak)
When the third base there, there should be criminal liability, but if one of
them does not exist, there is no accountability. With such a crazy person, child
under, people are being forced and forced unencumbered responsibility basic
accountability on them because it does not exist. Exemption of liability against
them is based on the Hadith of the Prophet and the Qur'an. In the Hadith narrated
by Imam Ahmad and Abu Dawood is mentioned:

َ ‫ ُرفِ َع ْالقَلَ ُم‬:‫سلَّ َم‬


‫ع ْن ثَ ََلَث ٍة َع ْن النَّائِ ِم َحتَّى‬ َ ُ‫صلَّى هللا‬
َ ‫علَ ْي ِه َو‬ َ ِ‫س ْو ُل هللا‬ ُ ‫ قَا َل َر‬:‫ت‬ ْ َ‫ى هللاُ َع ْن َها قَال‬
َ ‫ض‬ ِ ‫شةَ َر‬ َ ِ‫َع ْن َعائ‬
‫ي َحتَّى َي ْكب َُر‬ ِِّ ‫ص ِب‬َّ ‫ظ َو َع ْن ْال ُم ْبتَلَى َحتَّى َيب َْرأ َ َو َع ْن ال‬َ ‫َي ْست َ ْي ِق‬

From Aisha ra said: it has been said: the Messenger of Allah: Abolished the
provisions of the three terms, from a person who sleeps until he woke up, from a
madman until he recovers, and from young children to adults.
Surah An-Nahl verse 106 mentioned about people forced

َ ‫ان َولَ ِك ْن َّم ْن ش ََر َح بِ ْال ُك ْف ِر‬


َ ‫صد ًْرا فَعَلَ ْي ِه ْم َغ‬
ٌ‫ضب‬ ِ ‫اْل ْي َم‬ ْ ‫َم ْن َكفَ َر بِاهللِ ِم ْن َب ْع ِد إِ ْي َمنِ ِه إِ ََّّل َم ْن أ ُ ْك ِرهَ َوقَ ْلبُهُ ُم‬
ِ ْ ِ‫ط َمئِ ٌّن ب‬
‫ِمنَ هللاِ َولَ ُه ْم َعذَابٌ َع ِظ ْي ٌم‬

Whoever best infidels against God after he believe (he got the wrath of God),
except the person who forced the heathen though his heart fixed on in faith (he
was innocent), but people who broadened his chest to disbelief, then the wrath of
God on him and her doom. (An-Nahl Q.S.: 106)1
The fuqaha set two rules to meentukan whether the perpetrator of the criminal
offence by mistake burdened accountability or not. Two of these rules is as
follows:

1
‫ القد الجناءي والمساهمة والمسؤلية الجناءية واشروع الشرعى وعَلقة السبية‬,‫احمد ابو الرؤس‬

2
1. Any acts that result in losses against other parties subject to accountability upon
the culprit if the loss can be avoided by way of caution and not neglect. If the
loss is not possible avoid absolutely, the perpetrators of this Act are not
burdened accountability.
2. When an act is not justified by syara ' and done without emergency-urgent, it is
deeds that go beyond limit without emergency reasons, and consequences
arising thereof is subject to liability for the culprit, either due to the inevitable
or not.
B. Factors of Criminal Liability
Factors that cause the existence of criminal liability is immoral deeds, that
is working on the Act prohibited by syara ' or leave (not doing) the act ordered by
syara '. So, for criminal liability are crimes. If it does not do harm then there is no
criminal liability. When criminal liability that depends upon the existence of a tort,
while tort is terraced then accountability was also stratified. This is caused by a
person for a crime that was closely related to its intention, in accordance with the
Hadith of Prophet Muhammad.
Acts against the law adakala and adakala because of the confusion.
Purposely divided in two parts, that is purely and intentionally resembles the
purpose. While there are also two kinds of errors, i.e. mistaken solely and acts that
equated with confusion. As such, then that liability there are also four levels
correspond to the levels of tort, i.e. deliberately, intentionally, erroneously and
spring are equated with incorrect. 2
1. Intentionally (Al-Amdu)
In the sense that public deliberately occurs if the offender intends to do any
act that is prohibited. In the criminal offence of murder, intentionally mean
perpetrator intentionally doing the deed in the form of murder and he wants a
result in the form of the death of the victim. Of course the criminal liability in
this level are more severe compared to the level below.
2. Resembling a deliberately (Syibhul ' Amdi)
Resembling a deliberately only found in jarimah murder and persecution. This
still disputed by the fuqaha. Malik for example don't know this term
(resembling a deliberately), both in the killing or persecution.Almighty God
said,

‫َو َم ْن َي ْقت ُ ْل ُمؤْ ِمنًا ُمتَ َع ِ ِّمدًا فَ َجزَ آ ُؤهُ َج َهنَّ ُم‬

2
Bassiouni, M. Cherif, The Islamic Criminal Justice System, New York, Ocean Publication. Hlm.87

3
"And whosoever shall kill someone believer on purpose, then the reward
is hell ..." (QS. An-Nisa ' [4]: 93)3

َ ‫َو َما َكانَ ِل ُمؤْ ِم ٍن أ َ ْن يَ ْقت ُ َل ُمؤْ ِمنًا إِ ََّّل َخ‬


‫طئًا‬

"And it is not feasible for a believer to kill a believer (the other), except,
indeed, (not intentionally) ... (QS. An-Nisa ' [4]: 92)4

The sense of "a similar intentional criminal acts" in a murder case that
is doing an act that can remove the abuser lives and just intends strike,
without the intention of killing him. But the acts that result in death.
Understanding Syibhul ' amdi is he did it with the intention of the Act against
the law, but due to this Act is not desired. In the criminal offence of murder
syibhul size ' amdi is defined by the tools used. 5

3. Incorrect (Al-Khata ')


Sense of wrong is the occurrence of an act outside the will of the
perpetrator, without any intention of fighting the law. In this case, the deed
occurred because of negligence or lack of hati-hatinya. There are two kinds of
Kekeliuran:
a. Incorrect in deed, as a killer who shot the bird, but distorted and pelurunya
about the person.
b. Erred in alleged, such as a soldier who shot someone that opinion as a
member of the enemy forces, but after its own forces turned out to be
examined.
4. Circumstances identified incorrectly
In terms of this, the State was milder than mistaken, because the
offender in this State simply does not have the intention to do the deed, but
rather deeds that occurred solely due to ketelodornya and negligence. Whereas
in case of wrong doers are deliberately doing, though it resulted in karen
akurang carefully.
33
Departemen Agama Republik Indonesia, Al-Qur’an dan Terjemahannya (Surabaya: PT. Bina Ilmu),
93.
3
Departemen Agama Republik Indonesia, Al-Qur’an dan Terjemahannya (Surabaya: PT. Bina Ilmu),
92.

4
C. Factors That Affect Criminal Liability
1. The influence does not know, forget and incorrect.
a. Influence of do not know
Conditions in Islamic Shari'ah is the offender is not convicted of an act
that is prohibited, unless he knew perfectly about the ban of such a feat. If he
didn't know about the ban of the deeds he does not incur criminal liability.
The sense of "knowing" here simply by having the possibility of knowing.
Therefore, if a person has reasonable and healthy adults and had the
opportunity to know the acts prohibited, either by way of learning or ask
people who are good at, then that person is deemed to know all any act that is
prohibited, and he cannot be reasoned is not know. Therefore, the fuqaha '
stated that in the land of Islam is not an acceptable reason for not knowing the
provisions of law. The fuqaha ' can accept an excuse not to know the laws of
the people living in the outback and never hang out with other Muslims, or
from people who recently converted to Islam and are not residing among the
Muslims. Forgiveness against the people is not the exception but rather the
provision of Islamic law which prohibits giving punishment to people who
don't know the restrictions, so that knowledge acquired6
b. Influence of Forget
Forgot is not something tersiapnya in times of need. "The Forgotten"
is always coupled with the "wrong", as in the verse;
"O our Lord, thou shalt not our laws if We forget or We, indeed .... (Q.S.
Al Baqarah: 286)7
Hadith of the Prophet;
"Eliminated provisions for followers in the form of confusion,
forgetfulness and circumstances forced (H.R. Ṭabrāni from Ṡaubān) 27.
In discussing the fuqaha ' forget this law is divided into two groups; The
first; stated that the reason the public is forgotten, either in the Affairs of
worship nor the Criminal Affairs. They hold on to the general principle
that States that the person who executed the deed that was banned because
he forgot, sinless and exempted from punishment. Despite this he
remained subject to civil liability. The second; States that have forgotten
just being hapusnya the punishment of the hereafter. For penalties in the
world not to forget the reason deleted a punishment at all except in matters
relating to the rights of God. Jarimah done because forgot rarely occur,
because forgetting the prohibited deeds against itself in fact too

6
Ahmad Mawardi Muslich, Hukum Pidana Islam, (Jakarta: Sinar Grafika, 2005), hlm.79
7
Departemen Agama Republik Indonesia, Al-Qur’an dan terjemahanyya, ….49

5
infrequently. Therefore, forget not to abolish the duty, because the matter
remains a mandatory obligation that must be made by people who forget.
Forget just syubhāt that could be considered the chastisements had
abolished, and replaced with sentence ta'zīr. So forget the influence was
limited to the liberation of people who forget from punishment under
certain circumstances, or the liberation of punishment had in other
circumstances.
c. Wrong Influence
Notions of mistaken is the onset of something outside of the will of the
perpetrator. Jarīmah which occur because of the confusion, the
perpetrators of such deeds do not due to deliberate action or intention, but
rather because of the negligence and kekuranghatian. Criminal liability for
a person who erroneously equated this with the person who willfully, if
his actions were the acts that are prohibited by syara '. It's just that sets it
apart is the facet was. The reason for the Act intentionally is intentionally
doing the Act prohibited syara', whereas for in the deed because confusion
is breaking the terms syara ' is not intentionally, but because of the
negligence or the attitude of less careful.8
When viewed from the basics of the law of sharee'ah, actually it was
only charged to liability the Act intentionally prohibited by syara ' and
cannot be added to the deed because of confusion. (Q.S. Al-Ahzab: 5).
However, in certain circumstances sharee'ah allow punishment for the
overthrow of the fallacy as an exception from the provisions of the
principal, for example, the crime of murder. (Q.S. An-Nisa: 92). These
two provisions, one of which is the provision of subject matter and the
other is an exception from the provisions of the principal, then to be
subjected to the punishment for the deed because confusion must be strict
terms of sharee'ah. In syara ' does not specify a penalty for an act the
principal provisions continue to apply namely that deeds is not subject to
punishment. Nevertheless, deleted criminal liability from
misrepresentation does not mean delet civil liability, because according to
Syari ‘at Islam's soul and treasure gained assurance of salvation (ma'ṣum).
2. The influence of Jarīmah upon the Object Being Willing to liability criminal.
According to the Islamic Sharia, the willingness of the victim's
consent and to become jarīmah object cannot change the nature of the jarīmah
(still banned) and does not affect criminal liability, unless the compliance that
can eliminate one element the jarīmah, for example in the jarīmah theft,

8
Ahmad WardiMulih, Hukum Pidana Islam, ….80

6
because the element anyway is taking the property of another person without
consent, when the property owners agree to his capture, the capture is not a
permissible reason jarīmah. The provisions of the compliance berpengaruhnya
is not applicable to all jarīmah except jarīmah murder and persecution. The
exception is caused by the jarīmah because in murder and persecution affect
sorry of victims or his family that can abolish the penalty of qiṣāṣ or diyāt or
free her from punishment diyāt at all, and after it came into force penalty ta
"zīr if deemed necessary by the authorities.
D. Direct, For Deeds, And Deeds
1. Direct (mubasyarah)
Deeds of deeds directly (mubasyarah) is an act by directly without
intermediaries has led jarimah and at once became the reason for the jarimah,
like the shooting by someone with a pistol against others which resulted in
death.
2. Because the deed (Assababu)
Because the Act is an act which indirectly cause jarimah and became
his reason anyway, but by deeds, such as false testimony over the person who
is actually innocent that he has committed murder. In this example, the false
testimony will be be the reason (for) the existence of the death penalty for
innocent people, but it is not a direct cause of death, but by the deeds of the
executioner that carries out the death penalty.
3. The terms of the deed (syarthu)
The terms of the deed (syarthu) is an act that does not give rise to
jarimah and not to be a reason, like someone making well to everyday needs,
but then used by others (the second person) to plunges the third person to
death. In this example, there is the well being of the victim's death and
summation terms it is the Act of instantly.9
E. Elimination of Crominal Liability
Criminal liability may be delete because of things that are related to the Act or
because the things that associated with the circumstances of the offender. In the
circumstances the first deed done is mubah (not banned) while in a State that both
acts committed remain prohibited but the culprit was not sentenced. The causes
related to the Act called the asbab al-ibahah or the reason that the Act prohibited.
While the reasons relating to the circumstances of the offender called asbab al-raf'I
uqubah or remove the penalty.10
1. The reason that the Act prohibited (asbab al-ibahah)

9
Ahmad Wardi Muslich, Pengantar dan Asas Hukum Pidana Islam, (Jakarta: Sinar Grafika, 2004),
hlm.84
10
Ibid.hlm.86

7
Abdul Qadir Audah suggests that the reason that the Act prohibited the
following:
a. A legitimate Defense.
Divided into: special Defense (Daf'u Ash-Shail), i.e. the rights
(obligations of) someone to defend (protecting) themselves or others and own
property or property of others by wearing the required strength of any real
attacks is not valid. Public Defense (Amar Ma'ruf Nahi great evil), namely,
advocacy for public interest or in the more popular term amar ma'ruf nahi
great.11
b. teaching (Ta'dib)
A person who is entitled to provide instruction sometimes husband
against wife or parents against their child
1.) Teaching against wife
Among the rights of the husband in the Islamic jurisprudence was taught
his wife, apanila's wife does not obey it in conformity with these things
to, like out of the House without her husband's permission. Essence is
contained in the word of God QS. An-Nisa ': 34
"Men it is the leader for women, because of their partly melebihkan telaj
God (male) over some of the other (women), and since they (the men)
have spent most of their possessions. Therefore women Saleh was that
obey God again memeliahara away when her husband isn't there,
because God had kept them. Those women that you worry about
nusyuznya, exhort them and pisahkanlah them from their beds, and strike
them. Then if they are menaatimu, do not kamumencari-caeri road to
menyusahkannya. Allah the most high again again is great. "
Scholars from the sect and Al-Shaafa'i Hanfi posited reason
accountability husband is that teaching is the right husband and those
rights can be kept on the condition provided the safety of the wife.
Discharging these rights only for purely personal interests, where he can
use it or leave it.
2.) Teaching against minors
Teaching minors can be exercised by the father, teacher, coach job,
Grandpa, and washiy. The teaching of given by mistake that he did, not
against the mistakes will be made. Similarly the blow not to injure, should
not be about the face and limbs that are worrying as the belly and pubic.
Punch is meant it should not be excessive and worthy considered teaching
against small children. Meurut Imam Al-Shaafa'i, the person giving the

11
Ibid.hlm.108

8
instruction must indemnify over injury to the members of the body small
anakk due to the actions of teaching in circumstances however. The
reason is because of the education and teaching is a right and not an
obligation. Thus it can be meninngalkannya and can also do it. When he
was working on it then he is responsible for the consequences of his
deeds. This is contrary to the opinion of the faith of Abu Yusuf and Imam
Muhammad said that the father, grandfather, and washiy given
permission to do teaching and no accountability over the deeds that are
allowed.
3.) Threatment
Imam Al-Shyafi’I argues the reason hapusnya accountability from a
doctor is the permission of the person who is ill and the presence of
I'tikad good doctor to cure his patients and not for mnyakitinya. While
according to Malik the reasons remove responsibility doctor is a adnya
permission (consent) the authority and permission from people who are
sick. With the permission of the ruler, the doctor can freely run and
improvements. Whereas the existence of a patient's given permission
freedom for doctors to do according to his wisdom for the sake of health,
kindness, and healing the patient. If both of these permissions are
gathered (met) then no liability for doctors, as long as his actions do not
deviate from the principles of medicine or as long as he is not negligent in
doing his job.
4.) Sport
Islamic jurisprudence upholding and allow a path to strengthen the body,
refresh the mind, and awaken the courage as well as kepahawanan
through sports activities better known among the fuqaha with the term
al'ab al-furusiah, such as horse racing, archery, boxing, and so on.
Sports games sometimes cause injuries, neither of which befell players as
well as others such as referee. The position of sports games in positive
law has not yet been agreed upon and are still different views of one State
with other countries. United States and Belgium for example, consider the
wounds arising from sports games as a criminal offence. A strong
opinion in the United Kingdom, Italy, and Germany declared sports
games can be held in a certain boundaries and does not result in the
existence of accountability. In Egypt and France partly abolishing
criminal liability law scholar and part menetpakannya. The first opinion is
the more powerful.
On the reasons of such liability hapusnya, according to some scholars the
positive law is because there is no intention that is against the law.

9
According to others, the reason is due to the permissions of the victim and
because the State considers sports game as deeds are legitimate.
Therefore, who is doing the game then he wasn't burdened accountability.
5.) Deleted assurance of salvation
There is some people who lose the right assurance of salvation of the soul
or body members are:
 infidels
 harbi
 apostates who do adultery muhshan
 Robbers (bully security)
 Rebel people
 affected by penalty qishash
 Thief

Remove as a consequence of the assurance of salvation, is when one craft


made the Act of killing or scarring against seven persons mentioned
above, in principle they are not subject to punishment as killer or
molesters. But because of the authority of the ruler, and therefore he
should be convicted to ta'zir hukaman. If someone cut off the hands of
thieves, someone without processed to court then it is not subject to
punishment qishash ptong hand, the hand of the thief already lose the
guarantee of safety due to the Act of theft. However, because the
authority to mnghukum the thief's hand cut is the action legal, with
unlawful action, by depriving the authority of rulers (judges), and subject
to punishment ta'zir.

6.) The rights and obligations of the sovereign according to the rules in force
in the Islamic jurisprudence, an officer is not subject to criminal liability
if the act committed is still within the limits of its competence or outside
the limits of his authority, but his deeds done by I'tikad is good. When the
acts performed outside the limits of his authority and he realized that he
had no right to then he saddled pertanggungjwaban.
2. Because removed punishments (asbab al-raf'I uqubah)
Things that cause the termination penalties:
 Coercion
Coercion is an effort made by someone to influence others in order to do
what it wants olenya (pushy) and employ the the threat. As a result of the
existence of such threats, except work on the party was forced to have no

10
other choice, except to work out what is desired by the force. That is why
people are forced to lose the readiness (pleasure) and options (effect).
 Drunk
As for criminal liability for people who are drunk, a strong opinion (rajah)
from the four scholar, he was not sentenced to over jarimah-jarimah that he
did, when he was forced or resorted to drinking or he drank it up the will of
his own, but he did not know that the diminumnya that is the wine he drank
liquor or for medical treatment, and he was drunk. The man who was drunk
when the lost thoughts and kesedarannya, so thus the penalty is the same as
a madman.
 Crazy and under as in the Hadith of the Prophet: "kalam was made from
three groups, children until puberty, sleepers to wake up, and crazy people
to consciously (recovered)."12

12
Ibid hlm.112

11
CHAPTER III
CLOSING

Conclusion

From the description stated above, it can be taken a conclusion, that :


1. Criminal liability in Islamic law is imposition of a person with results of
actions he did with will it self, where he knew the intentions and
consequences of the reproduction.
2. In tort it is stratified in accordance with levels of tort law. Level-the level of
crime is caused by someone who is intimately connected with the qosad (the
intention), sometimes accidental and sometimes because of the confusion. The
Act intentionally divided to two parts are intentionally solely (al-amdi ") and
resemble intentionally (syibhu al-amdi"). While the confusion was also
divided into two parts namely mistaken solely (alkhaṭa ‟) and deeds are
equated with the confusion (Ma Jaro Majro ‟ al-khaṭha)
3. Factors that affect criminal liability, including; The influence does not know,
forget and mistaken, the influence of Jarīmah upon the Object Being Willing
to liability criminal.
4. Acts that can abolish criminal liability is: running conditions syari’at, because
the command Office, State force, self-defense, syubhat, sorry, the death of the
offender, repentance, expiry, education and teaching, treatment, sports, the
vanishing of assurance of salvation.

12
13
BIBLIOGRAPHY

Ajojola, Alhaji. 1989. Introduction To Islamic Law. New Delhi: International Islamic
Publishers.
Al Faruq, Asadulloh. 2009. Hukum Pidana dalam Sistem Hukum Islam. Bogor:
Ghalia Indonesia.
Ali, Zainuddin. 2007. Hukum Pidana Islam. Jakarta: Sinar Grafika.
Baihaqi, Ahmad Fatih. 1964. Al-Qishasu di Al-Fiqhu Al-Islamiyyah. Mesir: Al-Sara
Al-'Arabiyah li at-Tiba'ah wa al-Khasar.
Bassiouni, M. Cherif, The Islamic Criminal Justice System, New York, Ocean
Publication.
Hanafi, Ahmad. 1967. Asas-Asas Hukum Pidana Islam. Jakarta: Bulan Bintang.
Muslich, Ahmad Wardi. 2004. Pengantar dan Asas Hukum Pidana Islam Fikih
Jinayah. Jakarta: Sinar Grafika.
Mehat, Hashim. 1993. Islamic Criminal Law and Criminal Behavior. Kuala Lumpur:
Budaya Ilm Sdn. Bhd.
Zakaria Syafe’i. 2014. Pertanggungjawaban Pidana dalam Hukum Pidana Islam’. 31
(01): 100-129

‫ القد الجناءي والمساهمة والمسؤلية الجناءية واشروع الشرعى وعَلقة السبية‬,‫احمد ابو الرؤس‬

14