Hukum Hadd dan Qisas dalam Perintah Kanun Hukuman Jenayah Syariah, 2013: Analisis Pemakaian Pendapat Selain Mazhab Shafi'e

Abstract

Brunei Darussalam had enacted the hadd (prescribed) and qisas (retaliation) punishments, which were completely based on the Shafi‘ite school in its first written law known as the Hukum Kanun Brunei. The Shafi‘ite school was the official jurisprudential school referred to in the execution of religious practices and the main source of reference in the drafting of Islamic laws and the issuing of legal opinions in Brunei Darussalam. In 2013, the hadd and qisas punishments were reintroduced in the Syariah Penal Code Order, 2013. However, the extent to which the Syariah Penal Code Order, 2013 has adopted the opinions of other than the Shafi‘ite school in its hadd and qisas provisions remains unknown. Identifying the opinions of the schools that have been adopted by the relevant provisions is crucial, especially when interpreting and expounding detailed interpretations of general provisions in accordance with the opinions of the schools that have been adopted in the said provisions, particularly when these adopted opinions are only held by one specific school. Hence this study aims to identify the extent to which the Syariah Penal Code Order, 2013 has adopted opinions other than those of the Shafi‘ite school, in its provisions pertaining to the hadd and qisas punishments. This is a qualitative study employing the library research approach while data analysis was performed using the inductive method through textual analysis. The inductive method was used to examine related hadd and qisas provisions and also the opinions of the four schools of jurisprudence to identify and to draw conclusions as to which schools’ opinions were adopted in the said provisions. The study has found that the Syariah Penal Code Order, 2013 has adopted opinions other than that of the Shafi‘ite school in its hadd and qisas punishment provisions, which include the adoption of opinions from the Hanafite, Malikite and Hanbalite schools. In fact, the Syariah Penal Code Order, 2013 has gone even further and adopted the opinions of other than the four schools in its hadd and qisas punishment provisions. Out of a total of one hundred and thirty-one sections in the hadd and qisas punishment provisions, eighteen have been identified as having adopted the opinions of other than the Shafi‘ite school in twenty-three resolutions. Fourteen sections have adopted the opinions of the Hanafite school in twelve resolutions, four sections have adopted the opinions of the Malikite school in three resolutions, three sections have adopted the opinions of the Hanbalite school in three resolutions and ten sections have adopted the opinions of other than the four schools in nine resolutions. The study also concludes that generally, the adoption of the opinions of other than the Shafi‘ite school in such provisions is to accommodate the current situation on the basis of safeguarding and preserving public interest. Nevertheless the study makes several recommendations on reviewing some of the provisions in order to improve the Syariah Penal Code Order, 2013.