Chapter 2 - Extortion + Highway Robbery (Hirabah) PDF

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Chapter 2: Extortion + Highway Robbery (Hirabah)Issue: Whether can be held liable for extortion or highway robbery, which is also known as hirabahDefinition of Hirabah When it comes to the literal meaning of hirabah, it means to quarrel or to fight. However, when it comes to its technical meaning, i...

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Chapter 2: Extortion + Highway Robbery (Hirabah) Issue: Whether can be held liable for extortion or highway robbery, which is also known as hirabah Definition of Hirabah • • • •

When it comes to the literal meaning of hirabah, it means to quarrel or to fight. However, when it comes to its technical meaning, it consists of taking the property of someone in an open manner either by using force or threatening to use force. Therefore, hirabah can be said to include highway robbery, high treason, bloodshed, and also terrorism. It can also be committed either by a single individual or a group of individuals.

Elements of Hirabah 1. The act of taking away the property of another person by using force publicly • When it comes to the meaning of public manner, it means that such an act has to be conducted openly and not at all in a surreptitious manner. For example, robbing a store in a shopping mall would count as taking away property in a public manner as it is in full view of a lot of people in a public space. • Furthermore, when it comes to using force, the assailants have to be superior in strength in such a way that they might be carrying weapons or have great physical strength to the point where the victims cannot escape or overpower them. 2. Act of terrorism • An act of terrorising can be involved in either robbery, killing, bombing, or looting and therefore it can be seen that such act of terrorising does not necessarily have to only be conducted in order to materialise a robbery. As long as it is involved in either one of the things mentioned and even in materialising a robbery, such act of terrorism can be considered as hirabah as it is an attempt to spread mischief in the world. 3. Act of destruction • This is considered to be a complete element as destruction would be able to cover all acts that may occur whilst committing hirabah. For example, destructing a life or destructing property can fall under such element and can further allow the act to be considered as hirabah. In fact, drug trafficking and smuggling may count as hirabah. 4. The property must be in custody (hirz) • This means that the property must be protected in some way when such an act of Hirabah occurs. For example, if a property is merely left on the street, it would not be regarded as being in custody. 5. The property must be of the value of nisab • The value of nisab by the gold standard is three ounces of gold while the nisab by silver standard is twenty-one ounces of silver. This was in the year 2020 but it will vary according to the market value and may change value every day.

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If the property does not reach such value then it cannot fall under hirabah as the offender will no longer be liable for a hadd punishment.

6. Each offender must get share in such property equal to nisab • This is when hirabah is committed by a group of people, and in order for them all to be held liable under hadd punishment, they have to each obtain a share of property that reaches the value of nisab. 7. The such property must be valuable in sight of syariah • In order for property to be considered as valuable in the eyes of Syariah, it must not be something that is forbidden under Islam. • For example, wine and pork are not regarded as being valuable in the eyes of Syariah as they are regarded as haram. 8. The property must be owned by an individual • If a property does not belong to anybody, it would not count as hirabah anymore since it is not possible to take away a property from someone when such property does not belong to anyone. 9. The offender has no right to the ownership or share in it • This is because if the offender has a claim to the property and he takes it away, it is his right to do so and such an act would not be able to amount to hirabah. 10. The offender must have committed extortion with his free will and not in a state of compulsion or dire necessity • If an offender is acting under coercion or out of essential and dire need, it would not amount to hirabah. 11. The offender must be adult and sane person • If he is insane, he would not be able to have committed the act with his own free will due to the insanity and would not be able to be held liable for hirabah. Proof of Hirabah 1. Confession • This refers to confession from the one being accused of committing hirabah or from the several persons accused of committing hirabah. At the existence of such confession, there would be hadd punishment imposed. a) Confession must be a clear, free, and willful confession by the accused • Confession can be said to be the statement of an individual that is made before the court to state that the individual had indeed committed the offence he has been accused of. • However, before a confession can be deemed valid, the accused must expressly state the facts of the offence is done. He must state this in an accurate manner. The words that are used by him to describe such act must be clear and not metaphoric so that all

doubt can be removed and prove that the accused does indeed know how it is performed. b) Confessor must be adult and a good mental condition • The individual who makes the confession must he capable of self-expression. Furthermore, such individual must be an adult and be in good mental condition. • Due to such a requirement, an issue arises as to whether a confession from the deaf and dumb can be accepted. • There are two such views pertaining to this issue. • The first view is from Imam Abu Hanifa where he is of the opinion that the confession of the deaf and dumb is not acceptable even though the deaf and dumb individual is capable of writing his confession or making signs in an intelligible manner before the court. Therefore, a confession from the deaf and dumb is not acceptable according to this view. • The second view is from Imam Malik, Imam Shafie, and Imam Ahmad. According to then, they are of the opinion that the confession of the deaf and dumb can be accepted only if the deaf and dumb individual is able to write his confession or make signs in an intelligible manner before the court. Therefore, a confession from the deaf and dumb is acceptable only if a confession in writing or intelligible signs can be made by such an individual, according to this view. c) Confession must be voluntary • When it comes to such confession, it must be voluntary. • It is said to be voluntary if it had been made with the free consent of the confessor, who did not face any pressure, force, temptation, or coercion. If he had made a confession under such circumstances, the confession made by him is said to not be valid. d) Confessor must explicit as to committing of the offence • This means that the confessor has to make a clear and direct confession in order to be considered explicit. The standard of explicit has two different views on how it can be achieved. • The first view is from Imam Abu Hanifah and Imam Ahmad who are of the opinion that the confessor has to make four separate confessions before the court in order for it to count as the confessor being explicit, and only then can such confession become sufficient proof. • The second view is from Imam Malik and Imam Shafie who are of the opinion that the confessor only has to make a one-time confession in order for the confessor to be considered explicit and such one-time confession is enough to be considered as sufficient proof. 2. Testimony of two adults, sane and credible witnesses other than the victims • The witness must be adult and sane. Therefore, a minor would not be able to be considered a witness and is not allowed to provide a testimony to the court. • Furthermore, the witness has to be a Muslim. It is agreed by all jurists that evidence of a non-Muslim is not acceptable.

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Also, according to the majority of the jurists, the witnesses must be male. They believed that a woman is not allowed to provide evidence when it comes to matters of hudud and that such evidence is not acceptable. As such, a woman cannot act as a witness in hudud matters. It should be noted though, that this is a juristic view and not based on the al-Quran or the Sunnah. In addition, a witness must be adil. The definition of adil is a Muslim who refrains himself from major sins, does not commit any minor sins, has visible good deeds which are more than his evil deeds, and is moderate in his works and sayings. Generally, the jurists have agreed that adil is a Muslim who is considered as reliable in the society and does not behave notoriously. However, there are two views pertaining to the credibility of witness. o The first view comes from Imam Abu Hanifah. He is of the opinion that every witness is to be considered credible and should not have their credibility questioned unless there is a challenge by the opposite party on such credibility. Therefore, there is to be an assumption that every witness is credible unless challenged otherwise. o The second view comes from Imam Shafie and Imam Ahmad. They are of the opinion that a witness has to fulfil the condition of credibility of witness as laid down in the al-Quran regardless of whether or not such credibility has been challenged by the other party. This means the witness must not have committed small sins or big sins as stated accordingly in the al-Quran.

3. Circumstantial evidence • This refers to evidence other than confession and testimony from witnesses. Such evidence may be submitted and considered by the court as well, but there it is not as certain as a confession or testimony. Therefore, taazir punishment would be imposed for such evidence instead of hadd punishment. Possible Defences There are several possible defences available to be used against punishment. 1. Minor & Unsound Mind/Insane • The defences of minor and unsound mind or insane are based upon a specific Hadith. • The Hadith states, “Three persons are exempted from any liability, namely, minor until he attains puberty, the sleeping person until he awakes; and insane until he attains sanity.” • Therefore, according to the Hadith it can be seen that a minor should be exempted from liability as well as an insane person or a person of unsound mind. Thus, if it can be proven that the accused is of a minor or unsound mind, he or she can escape punishment in following the principle of this Hadith. 2. Under Coercion & Mistake • The defences of coercion and mistake are based upon a specific Hadith. • The Hadith states, “My ummah has been exempted from the liability of the action done by mistake, forgetfulness or under coercion.”

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Therefore, according to the Hadith it can be seen that exemption from liability is allowed when such action has been done by mistake or under coercion. Therefore, if it can be proven that the accused did the act under coercion or that of a mistake, he or she can escape punishment in following the principle of this Hadith.

Punishment for Hirabah Authorities •

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Chapter 5, verse 33 of the al-Quran Those who wage war against Allah and His Messenger, and go about the earth spreading mischief -indeed their recompense is that they either be done to death, or be crucified, or have their hands and feet cut off from the opposite sides or be banished from the land. Such shall be their degradation in this world; and a mighty chastisement lies in store for them in the World to Come. Chapter 5, verse 34 of the al-Quran As for those who repent before you seize them, then know that Allah is All-Forgiving, Most Merciful.

Different types of punishment •

It can be seen that in Chapter 5, verse 33 of the al-Quran, different punishments were mentioned in regards to hirabah. Therefore, which punishment should be given to a person or persons who have committed hirabah? There are a few views regarding this.

Discretion to choose – Imam Malik •

According to Imam Malik, the legislator or judge has the discretion to choose which punishments included in Chapter 5, verse 33 of the al-Quran should be given to the offender or offenders accordingly to the circumstances presented.

Specific circumstances + Certain Punishments (No discretion) • • •

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However, other jurists have specified the specific circumstances in which certain punishments are to be given. If an offender commits murder only, he should be liable for the death punishment. If the offender commits murder and takes away the property of a victim which amounts to more than the nisab, he should be liable for the crucifixion punishment. However, there are two views in regards to the crucifixion punishment. o The first view is from Imam Abu Hanifah and Imam Malik, who are of the opinion that the crucifixion punishment should be performed in such a way that the guilty party is tied alive to a cross or tree and then have his body ripped up with a spear so that he may die. o The second view is from Imam Shafie and Imam Ahmad, who are of the opinion that the guilty party should first be killed by either a sword or other methods. Then, his corpse should be exposed on a tree or a cross. If the offender does not commit murder but takes away the property of a victim which amounts to more than the nisab, the offender would have his right hand amputated from the wrist, and his left foot amputated from the ankle.

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If the offender does not commit murder and does not take away the property of a victim, there are two views as to what the offender should be punished with. o The first view is from Imam Abu Hanifah who is of the opinion that the offender should be imprisoned for a period to be determined by the court. o The second view is from Imam Malik, Imam Shafie, and Imam Ahmad, who are of the opinion that the offender should be banished from the country for a period determined by the court.

Punishment for Hirabah Refer to taazir punishment...