Be careful criminalizing adultery

Be careful criminalizing adultery

Nurrohman, Bandung

One of the articles in the revision of the Criminal Code that
sparked controversy among activists is the inclusion of adultery
or extramarital sex as a crime that could be punished by state.

Although most Muslims and those of other faiths acknowledge
that adultery is a sinful act that should morally be avoided,
they may well be of a different opinion about whether it should
be included in any criminal code.

Discussion of this matter cannot be separated from a
discussion on the relationship between sharia law and the state.

The proponents of sharia strongly argue that sharia tenets be
implemented by the state. For them, sharia is not only a moral
law based on human conscience but also a penal law requiring the
punishment of violators through an instrument of the state.

But others maintain that sharia law should only be used as a
moral guidance.

In pondering this debate, it may be worthy to look at an
incident which occurred during the time of the prophet Muhammad.

It was said that a person had come to the prophet and
confessed to committing adultery and asked to be punished by
penalty of death. The prophet turned his face and refused to
listen.

Since the act had been conducted in secret, and thus public
order and morality did not suffer, the matter concerned only the
guilty party who, with his soul and conscience had to beg God's
forgiveness.

The man, however earnestly renewed his confession and his
request so as to prove his sincerity towards God and to deter
others from committing the same act. Again, the prophet turned
his face. The same thing happened a third time.

But then the culprit repeated his demands a fourth time.

Eventually at the moment of execution the man regretted his
declaration and ran away. The execution squad eventually chased
him down and executed him.

The prophet then pronounced his famous sentence: "Would that
you had left him alive: He would have repented, and God would
have been merciful to him".

This story indicates that even during the time of the prophet
sinful acts like adultery if conducted in secret could be
categorized as a private matter.

So it is suggested to violators to repent and ask for God's
forgiveness. Adultery could only be categorized public matter if
it began in some way to disturb public order.

It also indicates that punishment -- 100 lashes for an
unmarried person or stoning to death for a married person -- is
optional.

Therefore we should not be so rash in criminalizing adultery.

Sharia is a form of moral guidance for Muslims. Not all its
tenets should necessarily be adopted in a modern criminal code,
which is public law for all Indonesians irrespective of their
religion.

Adultery can and is punished by customary law in such regions
like Aceh that have legalized certain customs.

I am not opposing those who advocate a different point of
view, but I do oppose a single interpretation of sharia.

We should recognize that there are many interpretations of
sharia's implementation.

The writer is a lecturer at the postgraduate program in the
Bandung State Institute For Islamic studies. He is also former
chairman of the department of comparative schools and law in the
Sharia Faculty.