Change will be difficult. For those who can pray, please pray for meaningful reforms for Malaysia.
Q & A on the Hudud and Qisas Enactmentpraying 1. What is the Hudud and Qisas Law?Hudud and Qisas laws deal with offences and punishments that are interpreted by Muslim juristic scholars to be derived from the Qur’an and the Sunnah (of the prophet). Hudud literally means limit. According to some scholars, the word “hudud” is not used in the Qur’an specifically in terms of punishment. However juristic opinion has reduced hudud to mean mandatory punishment. Under Hudud law, theft, robbery, illicit sex, alcohol consumption and apostasy are considered offences. Punishment for these offences are corporal in nature, involving whipping, stoning to death and amputation of limbs. Qisas (law of retaliation) refers to offences that involve bodily injury or loss of life. The punishment is death or imprisonment, but compensation in the form of a sum of money or property (diyat and irsy) is accepted if the guardian of the victim forgives the offender. In Malaysia both Hudud and Qisas offences are contained in the set of legislation known as the Syariah Criminal Code Enactment. In Kelantan the law is formally called the Syariah Criminal Code (11) Enactment 1993 and was passed on November 25, 1993. In Terengganu the Syariah Criminal Offences (Hudud and Qisas) Bill was passed on July 8, 2002.2. What offences are covered in the Kelantan and Terengganu Enactments?Six offences are recognised under the Enactment as Hudud offences, namely: * Sariqah (theft) * Hirabah (robbery) * Zina (unlawful carnal intercourse) * Qazaf (accusation of zina which cannot be proved by four witnesses) * Syurb (drinking liquor or intoxicating drink) * Irtidad or riddah (apostasy) The second set of offences refer to homicide and bodily injury and listed under Qisas.3. What are the punishments prescribed for the offences? 1. Syurb - is consumption of liquor or other intoxicating drinks. The act of consumption in itself regardless of whether a person is intoxicated by it, is punishable with whipping of not less that 40 stripes for first offenders, 80 stripes and imprisonment for repeat offenders. 2. Sariqah (theft) - is punishable by the amputation of the offender’s right hand. For a second offender, amputation of his left leg and for a third and subsequent offender imprisonment as deemed fit by the court. However the offender shall not be liable for the above punishments if amongst others, the value of the stolen property is less than a prescribed sum, the owner of the stolen property failed to take adequate steps to protect his property, the property is freely available or the property is valueless in Islam e.g. liquor or entertainment equipment. 3. Hirabah - For the crime of armed robbery, the punishment is:- death and thereafter crucifixion if the victim is killed and his or another person’s property is taken; or death if the victim is killed but no property is take; or amputation of the right hand and left leg if the victim is not killed or injured. 4. Zina - is categorised under the Bill as:-illicit intercourse by an unmarried person with another person the punishment for which is whipping of 100 stripes and 1 year imprisonment; and adultery; the punishment for which is stoning until death. 5. Qazaf - The Qur’anic injunction against qazaf is to prohibit the accusation of chaste women of zina (illicit intercourse). Under the Bill, any person who accuses another of illicit intercourse without bringing forth 4 adult male Muslim witnesses, is to be punished with whipping of 80 stripes. Section 9 specifically states that any person complaining of rape in a case where such rape is not proven shall be deemed to have committed qazaf. In relation to married couples, zina may be proven by unrebutted sworn allegation of a person against his/her spouse. 6. Liwat - is defined under the Bill as sodomy by a man with another person who is not his wife. Liwat is to be proven in the same manner as zina. 7. Irtidad or Riddah - The punishment for blasphemy or apostasy by an unrepentant offender is death and forfeiture of property. 4. What evidence is needed to prove Hudud offences?Every offence except zina must be proven by the testimony of 2 adult principled male Muslim witnesses who have not committed any major sins nor continue to commit minor sins. Zina is to be proven by the testimony of 4 adult principled male Muslim witnesses. Zina can also be proven by pregnancy of or birth of a child by a woman not then married unless she brings proof to the contrary. In the event there is insufficient evidence for the purposes of meting out hudud punishments, then the offender may nevertheless be punished by the court with non-hudud punishments. This is known as ta’zir punishment.5. Can Hudud punishment be reduced and adjusted?Hudud punishment is mandatory. Section 50 of the Terengganu Enactment provides that hudud punishments may not be reduced, substituted, stayed or in any way varied. Nor can the offender be forgiven.6. What is the difference in the notion of crime between Hudud and any secular penal code?Under secular laws, an action is considered criminal if it brings about serious harm or death to another party or when there is victimization involved. The violation of private property rights, including bodily rights (as in physical assault and rape) is also construed to be a crime. Although Hudud and Qisas are informed by these premises, there are additional areas in the Islamic law which are outside the bounds of these justifications. For example, under secular law, a sexual relationship between consenting adults is not a crime as it does not bring injurious harm to another party. Drinking of alcohol is not a victimizing act, hence it is also not a crime. However, drunken driving is, as it can potentially cause serious harm to another party. The right to renounce one’s religion is also not a crime as it is considered a human right to religious freedom, with no repercussions of victimization. In contrast, Hudud law “criminalizes” all of these actions, namely, sex outside marriage, drinking of alcohol and the renouncement of the Islamic religion. Hudud proponents say that these laws are divinely ordained by God. However, the codification and formalization of these laws are mediated by human actions and subjected to human interpretations.7. How can Hudud be subjected to human interpretations?The hudud provisions have been formed through the opinions of jurists in Muslim jurisprudence. The methodology of interpretation that is used involves ijtihad (independent reasoning) and qiyas (analogy). Their views are further subjected to sanctions through a politico-legal process of ijma or consensus of the jurists or through majority opinion (jumhur). The founding of the four schools of jurisprudence by the four great imams (Abu Haniffa, Malik ibn Anas, Shaf’i and Hanbal) were all in the Abbasid period, stretching from the 8th to the 13th century, or 100 years after the Prophet’s death.8. What other countries have a similar law?Hudud laws were introduced in Pakistan in 1979 under the rule of General Zia ul-Haq. In Sudan President Numeiri introduced Hudud by replacing the old Penal Code of 1974 with the new Penal Code of 1983. In the new Penal Code of Sudan, Hudud offences such as adultery are unlawful and the punishment will vary for Muslims and non-Muslims and whether one was married or unmarried. In Nigeria the northern state of Zamfara was the first to introduce the Hudud law in January 2000. Nine other Muslim-majority states in Northern Nigeria have subsequently adopted the Hudud to a lesser or greater extent.9. Is Hudud only applicable to Muslims?In countries with a population that are not predominantly Muslim (e.g Nigeria and Sudan), the laws are not applicable to non-Muslims. In countries where non-Muslims are of very small minority or non-existent and where an Islamic state is established (such as in Saudi Arabia, Iran), Hudud offences and punishments are incorporated into the law of the land and apply to all citizens.10. Is there a chance that Hudud may overstep the legal rights of non-Muslims?In all likelihood it will. As Malaysia is a plural society and where the concentration of one ethnic community is not necessarily confined to one region or state there are bound to be clashes and overlaps in application. For example in any crime the victim and perpetrator may be of different religions. If the alleged rapist is a Muslim and the victim is a non-Muslim, there will be the question as to under what law the charge would be brought about. Under Hudud the alleged male perpetrator may stand to gain because of the impossibility of getting the testimonies of four Muslim male witnesses. Under Hudud, Muslims who commit robbery of property that is valueless in Islam e.g. liquor or entertainment equipment will have a chance of escaping any prosecution. In another worst-case scenario, such as in an incident of gang-rapes, where there are multiple perpetrators and victims (comprising Muslims and non-Muslims), eye-witness accounts of the rapes which may be offered by the victims would not be admissible as evidence as they may not be Muslim and male. In all of these hypothetical cases non-Muslims will stand to see justice taken away from them.11. What effect will Hudud have on race relations?The bleak scenario is that Muslim and non-Muslims will be forcibly divided not just in the cultural and social sense but in a legalistic sense too. A parallel legal system established exclusively for Muslims will lead to the enhancement of structural discrimination, where race and religion (and gender) can be legally invoked to justify unequal treatments and other unfair provisions in society. Eventually it will also lead to a geographical divide between Muslims and non-Muslims where one can expect an exodus of non-Muslims to more “non-Muslim” states or even emigration abroad.12. What effect will Hudud have on gender relations?Like race relations Hudud will also setback the struggle for gender equality in society. Many provisions in the Hudud discriminate against women. Women are not accepted as witnesses and women are also most likely to be prosecuted for slander if they are not able to prove rape. In cases of adultery, women on account of them being pregnant will immediately be charged for the offence while it will be impossible to charge the male partner because of the requirement of four male Muslim witnesses.Evidence for rape is ocular evidence of four adult male witnesses or confession of the accused. The victim’s own statement has no testimonial value. Even if medical examination is taken and a sexual act has been proved to have taken place, the accused can still be acquitted. The woman is then convicted of zina. The onus is upon the victim to prove that she was not a consenting party to her rape. Even minors can be convicted of zina, unlike what is provided in the existing penal code, where consent of a minor is immaterial and statutory rape is applicable. In Pakistan, even twelve-year old victims of rape have received punishment for zina. In Pakistan today, there are hundreds of women in jail on charges of Hudud offences. This number is rapidly increasing and there is even a new jail in Larkana especially built for women.13. Is Hudud law presently being implemented in this country?Although the Kelantan State Assembly has passed the Syariah Criminal Enactment in 1993 it has yet to be implemented. So far nobody has been charged for the Hudud or Qisas offence.14. Is the law constitutionally legal?Criminal law is in federal hands. But the power to create and punish offences against the precepts of Islam has been assigned to the states by Schedule 9, List 2, Item 1. However, this power is still subjected to several restrictions. Syariah courts only have jurisdictions over persons professing the religion of Islam. Syariah courts also do not have jurisdiction in respect of offences “except in so far as conferred by federal law”, and also state authorities can only legislate for Islamic offences “except in regard to matters included in the Federal List”. As one legal expert Dr Shad Faruqi opines, this has made the Constitution “..hopelessly ambiguous”. He states that, “In Schedule 9, List 1, Item 4 it assigns the entire field of criminal law and procedure to the federal Parliament without specifying the areas permitted to the states.” As it stands now it appears that the states can enact laws for residual matters as khalwat, zina, drinking, not fasting or missing Friday prayers. But in the last two decades the state legislatures have also interpreted their powers expansively by enacting laws against homosexuality and apostasy. Law on apostasy is nevertheless a violation of the constitutional guarantee of freedom of religion in Article 11. Because of the ambiguous nature of the Constitution and irregular precedence set before, there is no clear legal opinion as to whether the Kelantan and Terengganu Enactments are outright unconstitutional. Until and unless the Hudud is enforced and challenged on constitutional grounds there will be no basis to conclude on the validity or invalidity of the law.15. What is the part in Hudud which violates the principles of the Malaysian Constitution?Article 11 is interpreted to mean freedom of religion and therefore is supposed to be a guarantee against prosecution on the basis of choice of religion. Article 8 provides that every citizen is equal before the law, hence the discriminatory nature of the Hudud against non-Muslims and women can be interpreted as being unconstitutional. Hudud also regulates and controls private and consensual activities unlike secular law which generally does not legislate on “private matters”, especially on activities that are not injurious and “victimizing”. Hudud also specifies punishments that cannot be substituted or lessened at the discretion of the judge. There is no such finality in secular law as law reforms are an ongoing concern, and adjustments are made in accordance with changing place, time and current sensitivities.16. Is there a difference between a ‘PAS’ Hudud and an ‘UMNO’ Hudud?It will be hard to imagine the difference between a “PAS” Hudud and an alleged “UMNO” Hudud. Perhaps in the UMNO case, the standards and requirement of evidence will be modified so as not to appear too gender-biased and discriminatory against non-Muslims. Perhaps certain offences such as drinking and the renouncement of Islam (apostasy) will not be subjected to harsh punishments, but with more emphasis on “forced rehabilitation”. Until UMNO is prepared to present its own version of the Hudud, we cannot be sure that it will be “more just”. Whatever it is, Hudud in whatever form is already a manifestation of an imminent parallel legal system aiming to separate the rights of Muslims from non-Muslims. In the worst-case scenario all citizens will be subjected to the sovereignty of one (most likely, Islamic) law. Ironically, in the best-case scenario this may lead to the creation of a non-Muslim nation alongside a Muslim one. We may be heading for a constitutional crisis if this delicate issue is not handled decisively.17. What is to be done?It will be difficult to repeal any law once passed. The strategy of stalling the implementation of Hudud (in the Kelantan case) is only temporary. If PAS manages to win the overwhelming support of the Malay electorate there will be less of a reason to postpone the implementation of the law.On a long-term basis the struggle to repeal Hudud law must involve the struggle to repeal all draconian and unjust laws, whether passed under religious or secular guises. All laws that violate the principles of human rights and equality must be abolished. The movement to institute human rights is not necessarily western-oriented. It is as much a cultural need to want human dignity to be protected as it is a universal obligation to appreciate the rights of a community to cultural and religious practice. However, ultimately we must recognize that the greatest rights worth defending are rights that are invoked purely on the basis of us being humans. Which means equal treatment, equal access to opportunities and equal dignity for all, regardless of religion, race, class, nationality and gender. The only viable movement in this direction would be to restore our democratic institutions and push for a genuine regime of human rights.
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