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Sunday October 9, 2011
I AM writing this in response to Zainah Anwar’s article “No hudud please, we are Malaysians” (Sunday Star, Oct 2), where she presented her objections to the implementation of hudud law.
I understand that she sees herself as a “modern, democratic and progressive” person and, as such, has great difficulty in understanding why there exists to this day people who are “stuck in medieval times”.
I know that her views with respect to hudud and perhaps the Islamic legal system is shared by some Muslims and this is why I am responding to her article. First, I believe a brief explanation on what hudud law is about would be relevant.
Hudud law refers to those specific crimes and their related punishment which have been categorically mentioned in the Quran. As such, there are only a few crimes which fall under the purview of hudud law. Given that these laws are directly derived from the Quran, to the Muslim who believes that the Quran is the word of God, its implementation is a matter of faith.
The crimes which cannot be charged under hudud fall under the purview of ta’zir wherein the punishment and mode of proof is open to discussion and debate.
It has also to be understood that the implementation of hudud laws is subject to very strict and stringent requirements. Due to the stringent punishments which are to be meted out, the requirements to necessitate the implementation of these laws are also equally stringent.
The case of adultery
The question of four witnesses in the case of adultery and the subsequent qazaf punishment should the accuser fail to bring forth the four witnesses is frequently scoffed at but it is an example of the strict and stringent requirements for conviction in view of the stringent punishment to be meted out. To meet the requirement of four reputable witnesses makes conviction almost impossible.
Perhaps some may then question that if it is nearly impossible to get a conviction in the case of adultery, why then the need for such a law? The answer is to maintain the status of adultery as a heinous crime in the eyes of the public. No one will then brag of having had illicit affairs in public.
The social implications of adultery is obvious for all to see. Abandoned babies, divorces and such are clearly on the increase. We speak out against the stringent punishment for adultery but who speaks out for the dead baby found in the trash bins?
The purpose of this requirement is also to ensure that such accusations are not made irresponsibly and rumours pertaining to a person’s moral uprightness are seen as something unacceptable by the general public.
The case of rape
In relation to the issue of rape, it has also to be explained, in the event some people still do not understand, that rape and adultery are two different things. The law pertaining to adultery is not applicable to rape. An accusation of adultery is made by a third party wherein the act is done by other consenting individuals.
An accusation of rape, on the other hand, is made by the victim herself, not a third party, and it is far from being consensual.
Given the situation, the requirement for the four witnesses is not relevant to rape as it is to strengthen the accusation of the third party in the case of an accusation of adultery. In the case of rape, conventional items of proof can be used such as DNA to secure a conviction.
It is to be noted that in the case of rape, many rapists get off scot free as they allege it was consensual sex. This is more so in “date rapes” or cases when the rapist is an acquaintance of the victim.
In such cases, the victim has to prove that it was not consensual. In most cases the victim and her moral integrity is then put on trial. Under the Islamic system, consensual sex is not a defence for the rapist as in effect he would be admitting to adultery. The victim would be let off as she claims rape and her involvement in the sexual act was not consensual.
There are those who would argue that an unsuspecting male would then become the victim when a woman seduces him and she then cries rape.
To that, my response would be for the male to keep his pants on at all times. This in itself would be a deterent to the occurrence of adultery as the male would always be wary since he would have no escape route open to him should she intend to entrap him.
I do not deny that in some cases, there are those who insist that rape and adultery are the same. It has to be noted that such claims have no Quranic justification and can be taken as a misinterpretation of Islamic law by individuals who do not understand the difference between the two.
If this happens, I am sure the Sisters in Islam will be able to argue out the case for differentiating between the two cases.
Pregnancy out of wedlock
Similar is the case for women who become pregnant out of wedlock. All that needs to be done is to say that she was raped or forced to have sex and that would suffice as her defence. Anyone saying otherwise should bring forth four witnesses as they are then the ones accusing her of having committed adultery.
A case in point is an incident in the time of Umar Al-Khattab when an unmarried woman was brought to him after having given birth to a child. Umar wanted to punish her but when asked by Ali, she explained what happened some 10 months before when she was forced to have sex in exchange for a drink of milk while she was dying of thirst.
Given that explanation, Ali quickly retorted that she was a victim, forced to have sex and should not therefore be punished. She was then released.
It is to be understood that the spirit behind the implementation of the law is to find the accused innocent unless the evidence and proof are so overwhelming and all requirements have been met that it cannot be opined otherwise other than guilty.
It is not to be implemented with a blood-thirsty and overzealous attitude as what some may wish to portray.
Thieves and the cutting
off of their hands
In the case of theft and the cutting off of the hand of the thief, it has to be understood that in the first place, two righteous persons need to come forward as witnesses. They must have seen the thief stealing the item with their own eyes.
At the same time, the item stolen must be above a certain value, kept in a reasonably safe location and the reasons for stealing must be other than out of necessity.
Last but not least, the victim must insist on charging the thief or thieves in court knowing full well the punishment which will be meted out in the case of a conviction.
Should the victim choose to retract all charges, after having achieved an amicable out of court agreement, then again the conviction and thereby the punishment averted.
It must be always borne in mind that the purpose of the law is to act as a serious deterrent to all “would-be perpetrators” and in so doing, reduce crime significantly. It is not the objective to maximise the number of those punished.
Theft, especially one accompanied by violence, leaves traumatised victims in its wake. Victims of snatch thieves, dragged over a few metres, suffer serious injuries. Some have died. Pregnant women have been known to suffer miscarriage and even innocent bystanders have been known to have become victims of this crime.
While conviction is difficult, due to the requirements set by the hudud, its implementation will serve as an effective deterrent. Should, through its implementation, the occurrence of crime be significantly reduced, then we must say that it has achieved its objective.
If a single hand is in the end cut off, but through it a thousand incidents are averted, and with it also a thousand traumatised victims, would one not say that the law has been a success?
It has to be reiterated that in the event a case cannot be charged under hudud, due to it not fulfilling the explicit requirements, it can then be charged under ta’zir.
In the case of theft, this includes situations where there were no witnesses to the crime but the stolen material was found in the possession of the accused, or there was only one witness instead of two. In such cases the accused, if found guilty, will still be punished but not under the laws of hudud.
It can be concluded that much is not known about hudud law and how it works within the bigger overall legal system, particularly by those who wish to appear as champions opposing it. What should happen is for the proponents to present their case in detail first, before it is opposed based on the points presented.
Secondly, while the punishment for hudud crimes are quite explicit, the procedures for its implementation can be discussed and so designed so as to ensure that they will not lead to an easy conviction.
Third and last, it is up to Muslims to decide whether they wish for these laws to be implemented on them.
If that is what they wish for, understanding it to be a requirement of their faith, who then is Zainah to refuse them their choice? After all, is it not said that one man’s meat is another man’s poison?
For those who like to give the impression that when hudud is implemented there will be so many people walking around without limbs and there will be not enough stones to throw, they are admitting that there are many thieves and adulterers among us who would commit these heinous crimes unashamedly in broad daylight.
If society has come to this point, don’t you think that immorality in our society has reached uncontrollable levels and that hudud is imperative? Laws are not only to punish but to be a deterrent.
Allah SWT understands the nature of His creations better than we understand ourselves. It is our faith that Allah SWT knows best.
As Assoc Prof Dr Mohd Asri puts it precisely, as Muslim you cannot go against Allah’s decree (the Quran is the word of God) but you can question the enactments and their implementation.
Sisters, if you accept the word of Allah SWT, you would be doing a great service to Islam if you can sit down with the implementers to iron out what you may perceive would be unjust in the implementation of hudud.
DR SITI MARIAH MAHMUD,
MP Kota Raja, Selangor.
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