As Hudud punishments are sanctioned through the core sources of the Islamic faith, a person found guilty of a Hudud crime is never shown leniency, Al-Riyadh newspaper reported.
In Saudi Arabia, a person found guilty of a crime for which a punishment has not been mentioned in the Qur’an and the Sunnah is usually handed a form of punishment known as Ta’zir. This form of punishment usually includes lashes but can also — depending on the person’s character and the severity of the offense — involve a prison sentence, a formal warning, house arrest, and a court injunction ordering the person to avoid certain areas, towns and people.
Ta’zir punishments are up to the discretion of judges and rulers, something that in practice leads to a disparity in judgments with some judges handing out stringent punishments.
Regarding this, there is an ongoing debate among Shariah scholars whether the authorities should introduce guidelines to create consistency in how much punishment judges should hand out for crimes that fall under the Ta’zir category.
Prominent Saudi Islamic scholar Sheikh Abdul Mohsen Al-Obaikan said renowned Islamic jurists have laid stringent conditions and regulations that need to be taken into account when handing out Ta’zir punishments.
These conditions include ensuring floggings are carried out using a whip that is not new so the person being punished does not sustain long term injuries and bruising, and only experiences a limited degree of pain, he said. “The lashes should also be administered on a fleshy part of the person’s body, such as the thighs. This is to avoid harming the person’s bones or internal organs,” he said, adding that the person’s physical condition also needs to be taken into consideration.
Sheikh Al-Obaikan said prominent Islamic scholars have noted that the person carrying out the lashes should not raise his arm very high to make sure the strikes are of a low intensity. “The purpose of the flogging is only to reprimand and reform the person rather than torturing him,” he said.
According to Sheikh Al-Obaikan, there have been no instances of someone being lashed up to 1,000 times for a crime punishable by Ta’zir during the first three generations of Islam.
He added that the second Caliph Umar bin Khattab (may Allah be pleased with him) sentenced a man found guilty of forging his seal to 100 lashes, an amount considered the maximum at that time.
“Handing out a huge number of lashes running into their thousands was alien to Islam. Even Prophet Muhammad (peace be upon him) ordered 80 lashes for a person found guilty of slander and the Qur’an mentions 100 lashes for a person found guilty of a serious crime like fornication,” he said.
He further criticized the habit of some judges who hand out disproportionate numbers of lashes and prison sentences for crimes that fall under the Ta’zir category. “This is unacceptable and contrary to the spirit of the Shariah. It is therefore essential to enact legislation to fix specific and suitable Ta’zir punishments,” said Sheikh Al-Obaikan.
Sheikh Muhammad Al-Dabbash, adviser of propagation and guidance at the Ministry of Islamic Affairs, said determining the Ta’zir punishment is a matter of Ijtihad (the exercise of personal judgment in arriving at a legal opinion or verdict on a case on the basis of a precedent found in the Qur’an or Sunnah). He added that there is no need to legislate or fix the punishment for Ta’zir crimes, as this is a matter of Ijtihad.
“There are no punishments fixed by the Qur’an or Hadith for Ta’zir crimes ... the punishment is left to the discretion of the concerned judge. Judges take into consideration the character of the offender and the severity of the offense when determining their sentences,” he said, underlining the need to show compassion and leniency when issuing verdicts.
Hadi Ali Al-Yami, deputy chairman of the National Committee for Lawyers and a member of the board of directors of the Human Rights Commission, criticized judges who issue stringent punishments for Ta’zir crimes. “The punishment in itself should be reformative and corrective in its nature,” he said.
Leading Saudi lawyer Muhammad Al-Moshawwah is also of the view that there is a need to fix punishment for Ta’zir crimes to stamp out the practice of judges handing out stiff punishments.
“We sometimes notice that the punishment for a single minor crime varies. This variance depends on the nature of the judge overlooking the case. This can be avoided through legislation,” he said.
He added that such legislation would help judges expedite procedures and stamp out disparity in rulings.
