by ARIS MUNANDAR, M.P.I.
In Arabic language, bribe is termed as “risywah“, which meaning is a “wage” or “gift” that is given in order to achieve a benefit.
Al Fayumi said that “risywah” is one’s gift to the judge or the like, to decide a verdict that benefits him or to make the receiver does whatever the giver’s wish him to do.
Ibnul Atsir said that the meaning of risywah is ‘a means to achieve the realization of a need by a manipulative attitude. The origin of risywah is rasya’, which means the rope of a pail functions to bring the pail to the water.
In terminology, risywah is a gift given to certain man to right the wrong and to wrong the right. Hence, the meaning of risywah is more confined in terminology compared to it’s etymological meaning. Also, In terminology, a gift will be stated as risywah if the aim of that gift is to right the wrong and wrong the right.
Bribe in Law
Bribing in law, and bribing the authorities to get a job is forbidden without any difference in scholarly opinions upon this matter. Even worse, it is considered as a big sin.
سَمَّاعُونَ لِلْكَذِبِ أَكَّالُونَ لِلسُّحْتِ
“They are listeners of falsehood and greedy devourers of unlawful earnings.” (QS al Maidah/The Table Spread: 42).
According to Hasan A Basri and Said Ibn Jubair, the meaning of the word ‘suht’ in this verse is bribes (risywah).
وَلاَ تَأْكُلُواْ أَمْوَالَكُم بَيْنَكُم بِالْبَاطِلِ وَتُدْلُواْ بِهَا إِلَى الْحُكَّامِ لِتَأْكُلُواْ فَرِيقاً مِّنْ أَمْوَالِ النَّاسِ بِالإِثْمِ وَأَنتُمْ تَعْلَمُونَ
“Do not usurp one another’s possessions by false means, nor proffer your possessions to the authorities so that you may sinfully and knowingly usurp a portion of another’s possessions.” (Qs. al Baqarah/The Cow: 188)
It is narrated from Abdullah Ibn Amr,
لَعَنَ رَسُولُ اللَّهِ -صلى الله عليه وسلم- الرَّاشِىَ وَالْمُرْتَشِىَ.
“The Messenger of Allah -peace and prayer of Allah be upon him- cursed the one who gives a bribe and the one who takes it.” (Narrated by Abu Daud in hadith no. 3580, etc; classed sahih by Al Albani)
In another narration the Prophet cursed Ar Ra-isy, that is the mediator between the briber and the bribed one (Narrated by Hakim in hadith no. 7068). Although it is classed as a weak narration, but it’s meaning is true. Mediating the briber and the bribed one means helping them to commit a sin and this is an unlawful matter.
Hence, it is forbidden to ask for bribe, to bribe, receive the bribe, and mediating between the briber and the bribed one.
But according to the majority of the scholars, one is allowed to bribe to get his rights, or to prevent any danger or threat. In this condition, the sinned one is the one who receive the bribe, and not the briber.
Abu Laits As Samarqandi al Hanafi said, “It is alright if one defends himself and his right by bribing.”
There are scholars who explained this stance by saying that the shari’a allows one to use dangerous thing to prevent the more dangerous thing. For example is redeeming the captives by paying some money, while the truth is giving wealth to the disbelievers (infidels) is forbidden and considered as wasting the wealth. But in this case, such forbidden thing is allowed to prevent the worse danger. By this, doing a forbidden thing which posses no danger to prevent the worse danger is surely more rightful to be allowed.
But if the right to defend is worthless, then an attempt to defend it without any indication in shari’a is forbidden. That is because the danger here outweigh the desired benefits.
Majority of the scholars based their opinion on a narration from Ibn Mas’ud. When he was in Ethiopia, he bribed certain man with two dinars to be able to continue his journey.
إنّ الإثم على القابض دون الدّافع.
“Indeed, the sin is carried by the one who received that bribe and not the giver.”
Atha’ and Hasan Al Basri said, “A man is allowed to pretend (pretending to give present or bribe, -translator) to defend himself and his possession if he is afraid that he’ll be oppressed.”
The types of Bribe
The Hanafi scholars divided the bribe into four categories.
First, a bribe given to be appointed as a judge and authority (also to be a civil servant, -translator). This bribe is forbidden for both the giver and one who received it.
Second, a demand for a bribe from a judge before he make a decision. This kind of bribe is also forbidden for the giver and receiver, even though the decision is a valid and fair law, because to make a fair decision is an obligation of a judge,
Third, giving a certain amount of wealth to a person to prevent his threat (an oppression) or to get benefit (that is to receive his rights, translator). This kind of bribe is forbidden for the receiver only.
Fourth, giving a certain amount of wealth to person who is able to help one to get his right. Giving and receiving such wealth is lawful because it merely serves as a compensation of a help, that is similar to a wage.
Bribing the Judge
Bribe given to the judge is forbidden, according to the agreement of all scholars.
Al Jash-shash said, “There is no difference regarding the forbidden state of a bribe given to the judge because it is considered as ‘suht’ that Allah has forbidden in the Qur’an and all muslims are also agree that it is unlawful. It is forbidden for the briber and the bribed one.”
In a book titled “Kasysyaf al Qona’” it is mentioned that, “A judge is forbidden to receive any gift. A judge who borrow other people’s possession is similar to having a gift because the service he got from that thing is similar to having the thing itself. Also if a judge have his son circumcised or other event, and he is given gifts although in a form of a present for his son. It is forbidden because it’ll lead to bribery. If one give alms to the judge (because the judge is a poor man, -translator), then the more appropriate stance is that the state of that alms is similar to a gift although in the book ‘Al Funun’ it is said that a judge is allowed to receive alms.”
(Rearrange from ‘Mausu’ah Fiqhiyyah Kuwaitiyyah’, on the entry of bribe/risywah)
Author: Ustadz Aris Munandar