JP/6/NUR

Looking to the past before 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.