Q & A on the Hudud and Qisas Enactment
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?
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
References:
- Rose Ismail
(ed), (1995) Hudud in Malaysia: The Issues at Stake, Kuala Lumpur:
SIS Forum (Malaysia) Berhad.
- Shad Faruqi,
“Thoughts For the Future”, Sunday Star, July 14, 2002.
- Sabiha Sumar and
Khalid Nadvi (1988), “Zina: The Hudood Ordinance and its Implications for
Women”, Women Living Under Muslim Laws Dossier 3, June/July.
- Asma Jahangir
(1988) “How Far Are Penal Laws Effective In Protecting Women?”, Women
Living Under Muslim Laws Dossier 3, June/July.
- Women’s Crisis Centre (2002), Overview of the Terengganu State Syariah Criminal (Hudud and Qisas) Bill 2002, WCC: Penang.
