Every other day the idea of implementing Islamic hudud laws in Malaysia rears its ugly head. Ugly because it is controversial and there is no consensus among scholars and the learned on Quranic studies.
By Sarajun Hoda
It is a contentious issue that gravely divides the Muslim Ummah. Not just now, but throughout the 1,300 over years of the Islamic calendar. Despite failing at any time and anywhere in the world, hudud practices – as do honour killings in Islamic societies like in Afghanistan, Bangladesh, Pakistan, Nigeria, Jordon, Iran, Saudi Arabia, Somalia only – smears the reputation and demonises the peaceful and caring religion.
The majority that push for hudud are those obsessed with the mentality that gives more importance to old ‘forms’, ‘models’ and ‘rituals’ rather than the values, principles and spirit of the faith as ordained in the Qur’an. Consider that if Islam is a religion alive, how can stillborn rules of an era void of the rule of law and the absence of any sort of justice system 1,400 years ago still emerge from a faith whose basis is peace and love? Those days, every member of the society was considered as different parts of the ‘body’. Severing one part was deemed as inflicting pain on the wrongdoer but the pains were felt by the whole society. So the punishment had to be harsh.
Here we go again…
In Malaysia, those supporting the issue become overly contentious every time an election nears when both sides compete to inflate their vote banks. And while the debate continues, the peace-loving faithful of the compassionate and merciful religion get extra confusing, devotional free spins. The Muslim clerics themselves with their parochial interpretations continue to demonise Islam and excite blind believers to terror.
Clerics any time, anywhere in the world always play the role of parasitic tools of those in power or to those with the keys to the treasury. In Malaysia too, such clerics enjoy total impunity and become increasingly powerful in dictating the rules of morality. Or rather, they go all out to forcefully impose on others their brand of a narrow understanding of the faith.
This reality plays out again in the the latest round of the hududdebate – a challenge thrown by Umno but to its chagrin, Pas this time around refused to take the bait or to be drawn into political sparring. Only Nik Aziz, Pas’ spiritual head, congratulated Umno either out of his personal conviction or he was rather trying further to inflame the issue to trap and push Umno into the very pit it dug for Pas.
Umno as usual enjoys total impunity and, for all intents and purposes, is never shy, never apologetic and never tired in openly expressing such inhibiting tendencies that raise serious issues that can inflict and inflame religious and racial tension.
As a result of not having the stomach to speak out to real power, MCA, MIC and Gerakan and other non-Muslim coalition partners in the Barisan Nasional are now close to political decimation. That’s a fatalistic price to pay for their current scrawny being. These silent, stupidly docile, thick-skinned and tamed coalition leaders knew what was coming; yet they betrayed the very community they supposedly represent.
Johor Umno state assembly member Ayub Rahmat’s proposal thathudud be implemented irrespective of race and religion that started the alarming debate this time around. The only protest by MCA President Chua Soi Lek – accusing Ayub of being out of his mind and running out of ideas (as if Umno cares) – did not resonate with the mainstream media.
Funnily, despite PM Najib’s reminder that hudud will never be practised in Malaysia, Umno leaders such as the women’s wings in Kepala Batas, Umno’s Young Ulama, Umno Puteri head Rosnah Shirlin and Umno stooge Perkasa stepped out of line in openly showing strong defiance to the leadership. Was this display an early sign of Najib’s loosening grip on power or his fast deteriorating unpopularity within his own party? Time will soon tell.
Back to the issue – is it true, “hudud laws are part of the Islamic criminal code which is a part of Allah’s tenets”, as Rosnah the Umno Puteri leader claims? Islamic scholars are divided with differing opinions over whether such Islamic criminal laws can be applied to both Muslims and non-Muslims. Or whether hudud can be applied at all, in these contemporary times when our society already has rules guiding its conduct.
There is no consensus. The principles spelt out in the Qur’an render such an aspiration most delusionary. Islam is a religion of peace; so how can such laws be forced upon non-Muslims? Isn’t it cruel to impose hudud onto them? It is not their faith and hence, they may be ignorant about what is morally or statutory lawful and what is prohibited in Islam. Can one faith be forced upon another? How would it reflect on Islam? The Qur’an says in Chapter 5 verse 48: “And this (He commands): Judge thou between them by what Allah hath revealed, and follow not their vain desires.” So what has Allah revealed?
Let’s look at what exactly these hudud laws are. It is an obdurate punishment for offences such as theft, brigandage, illegal sexual intercourse, the false accusation of zina (sexual intercourse out of wedlock), alcohol consumption, apostasy and blasphemy, among others. Consider too that the evidence required is so exacting, extenuating and rigorous that it becomes impossible to implement. If these safeguards are not adhered to, in all probability it could easily lead to cruel yet porous dispensations.
That is probably why God, kind and forgiving as he is, emphasises in the Qur’an compassion and reform than retribution. For example,“The thief, male or female, you shall cut their hands as a punishment of their crimes, and to serve as a deterrent from God. God is Almighty, Most Wise. If one repents after committing this crime, and reforms, God redeems him. God is Forgiver, Most Merciful” (Quran 5:38-39).
Let’s see another. “The adulteress and the adulterer you shall whip each of them a hundred lashes. Do not be swayed by kindness from carrying out God’s law, if you truly believe in God and the Last Day… However, if they repent afterwards, and reform, then God is Forgiver, Most Merciful” (Quran 24:2-6).
Tragically, when man plays God, he becomes brutal and vindictive. God’s virtue of compassion and mercy either evaporates into thin air or is wickedly silenced. Somehow clerics always fail to feel for God’s compassion and their vigour to inflict reprisals is always excessively prodigious and overriding.
Malaysia accepts the four major Sunni madhabs (schools of thought) but officially sanctions one, the Shafie madhab. All of them find differences in the specifications of these laws. Argued as God’s immutable laws, the punishment can be so severe: capital punishment by swords, stoning, amputation of hands or feet and flogging in public (if erroneously inflicted, it can destroy a human life for good). Since human judges don’t enjoy God’s thinking faculties and have limited vision of the unseen, errors in judgement cannot be ruled out.
Can we allow chance to destroy one’s life? Flawed justifications could lead to wrong punishment and a reversal cannot be possible: it would be too late. Isn’t it a human principle in law that in dispensing justice, it is better to let a felon go than to do miscarriage to justice and punish an innocent. Allah the compassionate and merciful pronounces the same.
Compassion and confusion
The Qur’an actually places strong emphasis on compassion and leniency, something foreign to the so called ‘fiqh’ man-made form of Islamic Jurisprudential tradition that is assumed to be of God’s will. So, why is man trying to become greater than God?
Interestingly, hudûd punishments are said to remove the sins committed by Muslims so that they will not have to be punished again in the hereafter on what they have done in this world. In other words, clerics by applying hudud rules intend to assume God’s role as if they are capable of all divine considerations, thinking and judging as God himself would do. How convenient.
Some with illogical zeal even go overboard. Malaysian Defence University lecturer Ridhuan Tee, a convert, recently appeared live on television, which I watched myself, to chilling effect. He arrogantly and vigorously contended that hudud be implemented by force. Such a cleric, who is dependent on power, never ceases to inflict maximum fear and demand absolute compliance. Ridhuan quite effectively demonstrated what our clergy is capable of if they are given too much power. As Islam is about submission to Allah, these playing-God clerics expect fellow humans to submit before them.
The President of Persatuan Ulama Malaysia, Datuk Sheikh Abdul Halim Abdul Kadir, an ex-mufti, insists that hudud is clearly found in the Qur’an. Whosoever rejects hudud, he says, rejects the Qur’an and becomes an infidel.
This is not true. Such a proclamation does not exist in the Quran. Says Prof.Mohamed Hashim Kamali of the International Institute of Advance Islamic Studies, although hudud (pl. of hadd – limits) is mentioned 14 times in the Quran, none of them refers strictly in the sense to penal sanctions. He adds, “To reserve the hudud entirely for certain types of punishments is a juristic convention that does not originate in the Qur’an.”
You see the confusion? The same Qur’an. Two experts. One findshudud as penal punishment, the other doesn’t. Such is the tragedy of interpretations of faith in Islam.
There is a clear divergence between the ‘fiqh’ (Islamic jurisprudence) tradition and the more restrictive approach of the the Qur’an. Fiqhtreats hudud as fixed and mandatory punishments, but the Qur’an, in the same breath, gives room for rehabilitation. God, truly compassionate, forgiving and merciful that he is, gives room for flexibility and discretion. Each of the four Quran’ic verses on hudud is in every case immediately followed by preference for repentance and reform: if the offender repents and reforms himself then God is truly forgiving and merciful.
Prime Minister Najib contends that the principle and objective of‘maqasid syariah’ (which among others, entails protecting religion, life, morals and property) is observed in the light of present reality, is already championed in existing laws, and therefore hudud does not need to be implemented. He is quite right. We have today laws of the land covering all the hudud offences. The hudud of yore was prescribed when there were no laws of the land.
Furthermore, hudud was introduced because during the pre-Islamic period Arabs ruthlessly pursued material interest by plundering others to enrich themselves. Hudud made the state free from misery and injustice. Now is a different epoch. Property and rights are already protected by the existing laws of the land. We need to appreciate the difference.
Tun Mahathir, who played the longest, primary role in setting up and strengthening the Islamic jurisprudence system in Malaysia, himself nonetheless says hudud is not found in the Qur’an. He affirms that it is man-made by Islamic jurists and its practice is flawed and unjust.
A rapist for example, he alleges, will always get away because the rape victim will never be able to present four witnesses. If a child is born out of wedlock, the child being the evidence, the woman is punished for zina and the man responsible, Muslim or not, gets away scot free. In the case of a Muslim and a non-Muslim who steal together, the Muslim loses a hand and the non-Muslim gets away with a lenient punishment. Again, he further asserts, how can any unjust laws be Islamic because Islam is a religion of compassion, justice and peace. He has a point there.
What the experts say
Now let’s see what the experts say.
Ex-Perlis Mufti Mohd Asri Zainul Abidin, a learned scholar in Islamic law, emphasises compassion and the mention of hudud should not provoke the fear it often does. He adds, however, that conditions in Malaysia are not conducive to hudud. And he questions Nik Aziz’s brand of hudud.
Mohamed Hashim Kamali, a professor of law at the International Islamic University, in an article published in the Arab Law quarterly in 1998 emphasises that:.
The Qur’anic outlook on punishment may be characterised by its dual emphasis on retribution and reformation. It is my submission that the conventional fiqhi approach to the formation of the underlying policy toward the hudud has failed to be adequately reflective of the Quran’ic guidance on this subject.
And then in its typically imitative and taqlidi orientation, I further submit that the hudud Bill of Kelantan has also failed to be reflective either of the balanced outlook of the Qur’an or of the social conditions and realities of contemporary Malaysian society.
The approach taken by Fiqh tradition is harsh as it is against the totality of Islam, a religion of compassion. Now if one were to review the whole theory of hudud from a strictly Qur’anic perspective, the hudud can no longer be seen as mandatory and fixed penalties.
“The whole issue,” he stresses, “has been riddled with misunderstanding, exaggeration, and disillusionment.”
IKIM has yet an interesting observation. In an article, ‘Hudud and democratic rights’, published in The Star in October last year, it summed up the situation as follows:
- “A great number of the Muslims themselves do not believe in Islamic law, or (are) afraid of it because they have no idea or have been given a wrong idea as to what it is all about. Some others do believe in it, but they do not have confidence in those who say they can implement it….
- “But a proper Muslim also would not allow people who are incompetent to use hudud as their rhetoric just to get into power because they are going to create bigger disaster …So now the crux of the matter is actually education.”
- “Islamic law and political system cannot be conceived nor practised outside the framework of Islamic ethics and morality because justice actually begins with the self. Even divine law cannot bring justice to society if it is left in the hand of incompetent and corrupt individuals.”
- “Our politicians, unfortunately, are not really interested in education. Perhaps, due to being poorly educated themselves, they do not see anything greater and more important than power.”
- “Today even the so-called ulama are thinking along those lines. Because of that they make politics their highest priority in life at the expense of all other concerns particularly education of the Muslims. They don’t realise, that due to their excessive preoccupation with power politics, the state of affairs of the Muslim education is steadily deteriorating, resulting in widespread ignorance and confusion”.
- Basically it effectively sums up what the politicians’ motives are by saying: “Implementing hudud is a big trust and it will not appear good and convincing in the hands of those who do not possess adequate moral and intellectual integrity.”
Dr Nik Noriani Nik Badli Shah, a lawyer with a Masters in Comparative Laws and a PhD in Islamic and Other Civilisations, claims that severe physical punishments including amputations were common in past societies, even in medieval Europe,. These were often imposed on the poor and weak. So, the Qur’an imposed hudud to limit the punishments by imposing various conditions before they could be carried out, and emphasising on repentance and God’s mercy.
Echoing PM Najib, she says, societies today have prisons and other methods for punishment and rehabilitation.
Sisters In Islam (SIS), on the other hand, alleges that the hudud issue in Malaysia is politically charged (explaining why this issue almost always crop up just before elections) and is still controversial among advocates, opponents and the Malaysian public. The group amplifies that all possibilities and the consequences must be weighed carefully to avoid the potential for enormous consequences of injustice that it holds. This is to avoid undermining the sanctity of Islam and to ensure too that human interpretations do not fatally contradict or subvert principles of justice, fairness and equality as enshrined in Islam.
The European Muslim scholar Prof Dr Tariq Ramadan recently toured Malaysia and was even hosted by our esteemed local Islamic institutions – meaning he has a following among the learned in Islamic jurisprudence. He called for a moratorium on hudud punishments, on Islamic grounds until greater scholarly consensus is reached.
A multiracial country like Malaysia is not suitable for hudud to be implemented.
The religious advisor to Iranian President Prof. Dr H Gafoor Fard, invited to attend the 54th Umno General Assembly in 2003, said this to the Malaysian press after meeting DPM Abdullah Badawi. … except the Christians, the rest of non-Muslims presently forming our sizeable population are not people of the Allah ‘books’- the Torah, Zabur, Bible and Qur’an. Therefore saying hudud should be applied also to non-Muslims on the same basis is gravely flawed. Allah never forced such on people of other faith. Time and stake holders are different altogether.
Umno’s proposal suggesting equal justice to all the citizens to reflect equal criminal responsibility over every crime committed in an Islamic state by any person, Muslim or non-Muslim, is effectively a mirage. You cannot forcefully make people of different faiths, different beliefs, practising different value systems, submit to a faith that is not their own. This is what the non-Muslims find alarming, incoherent and unjust.
That is probably why Pas’ Kelantan Enactment gives a choice to non-Muslims whether they want to be punished by it or choose to be punished by the nation’s law instead. That’s two differing systems running parallel. In the race to play God, Kelantan’s hudud
enactment is advocating different punishment to people of different faiths. The Muslim gets stoned for adultery and the non-Muslim partner gets freed from a jail sentence. What kind of social justice could that be?
The question that comes to mind is, is Malaysia an Islamic state or is Islam just the official religion of this country? On the basis of the second, enshrined in our Constitution, the whole idea actually falls apart. Appreciate that Article 8 (1) of our Federal Constitution guarantees, “All persons are equal before the law and entitled to the equal protection.” Furthermore, Article 11 of the Federal Constitution also assures, “Every person has the right to profess and practise his religion.”.
There is another twist, though. If Umno retains power in the 13th general election, with Minister Zahid Hamidi, now suggesting the formation of an ulama wing, the signs are clearer that hudud might find its way into our legal system. Unless Najib closes the chapter for good by amending the Constitution that hudud will never be implemented here, effectively taking away any chance for Pas in future to have the same idea, as the Malay saying goes, ‘gajah sama gajah lawan, pelanduk mati di tengah’
and non Muslim citizens could be in for a rough ride. (But see an accompanying piece to be published soon by Pas MP Dr Zulkefly Ahmad, that suggests a paradigm shift in thinking among the Pas leadership.)
Should a doubtful social injustice be inflicted in a plural society by the sordid exploitation of a minority?
Humans should stop punishing fellow humans for crimes against God. God knows how to handle such a situation. He does not need a man to “play” him.
Sarajun Hoda is an Aliran exco member.