Muslim jurists have divided Shariah punishments into three types: Hudud, Qisas and Ta'zir. Hudud are those forms of punishment set by Almighty Allah and which must not be transgressed; Qisas are those that are carried out in retaliation for crimes and Ta'zir are those forms of punishment administered at the discretion of the judge for a crime for which no specific punishment has been ordained in the Holy Qur'an. Muslim rulers grant judges the power to act in a legal capacity and the right to review discretionary rulings. If judicial rulings are in the interest of people and society, then the ruler will sanction them. If he feels that they are not severe enough or vice versa, then he has the authority to make changes. Shariah focuses on the overall interests of society. The objective and purpose of legal rulings of any type is to allow justice to prevail and to enhance stability, security and peace. Lashing as a discretionary form of punishment is left to the judge who will decide the number of lashes. There is an interesting principle within Shariah: “There can be no Ijtihad when an explicit text exists in the sources.” Ijtihad in Shariah means independent reasoning conducted by a scholar to reach a legal decision based on his interpretation of the Holy Qur'an and the sayings of the Prophet (peace be upon him). Some discretionary rulings, such as lashing made by our courts, clearly and unjustifiably contradict what the Prophet (pbuh) said regarding lashes. Moreover, the Kingdom is a signatory of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Article 1 of the convention defines torture as “…any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession.” That is why the Kingdom should restrict discretionary judgments to imprisonment and fines. This is possible because the Shariah gives the ruler the ultimate authority in this matter. As for cases related to the transgression of Allah's limits, lashes should be administered as prescribed by Shariah. These limits are ordained by Allah who says in the Holy Qur'an: “These are the limits ordained by Allah; so do not transgress them; if any do transgress the limits ordained by Allah, such persons wrong (themselves as well as others).” (2:229) Substituting imprisonment and fines for lashes will serve the utmost interests of individuals and society. It is in our interest to substitute alternative penalties determined by our judges for lashes. As a country, we have strategic interests and it is incumbent on us to act according to international laws and agreements, especially since the Kingdom is a founding member of the United Nations. Furthermore, we still wait patiently for the codification of Shariah. This would help regulate discretionary judgments and bring a halt to the disparity that exists in sentences issued by judges. The only way to eliminate this disparity is to codify the Shariah.
